To be argued by: William J. Dreyer
Time requested: 15 minutes
Qtourt of ~ppeal%
of the
~tate of §tew ~ork
--------··--
Jn 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,
Petitione1;
-against-
NEW YORK STATE COMMISSION ON JUDI CAL CONDUCT,
Respondent.
PETITIONER HON. CATHRYN M. DOYLE'S REPLY BRIEF
Of Counsel
William J. Dreyer
Craig M. Crist
Date: February 25, 2014
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
PAGE
TABLE OF AUTHORITIES ........................... .
PRELIMINARY STATEMENT. .................... .
POINT I
ANY MISAPPLICATION OF APPLICABLE GUIDANCE
WAS MADE IN GOOD FAITH................................................... 3
POINT II
THE COMMISSION HAS FAILED TO ESTABLISH
"TRULY EGREGIOUS CIRCUMSTANCES" NECESSARY
TO WARRANT THE SANCTION OF REMOVAL........................... 7
A. The Conduct At Issue Does Not Warrant Removal..................... 7
B. The Hearing Referee Was Correct in Determining
that Judge Doyle Was Forthright and Credible
At the Hearing............................................................... 10
D. Judge Doyle Has Further Demonstrated A Willingness
and Effort to Comply with All Ethical Rules............................ 12
CONCLUSION................................................................................ 13
TABLE OF AUTHORITIES
CASES PAGE
Matter q{Conti, 70 N.Y.2d 416 (1987) ............................................................ 8
Jvfaller of Cunningham, 57 N.Y.2d 270 (1982) ................................................ . 7, 8
Dixon v. Srare Comm'n On Judicial Conducr, 47 N.Y.2d 523 (1979) ......................... 9
Maller of Fabrizio, 65 N. Y.2d 275 ( 1985) ......................................................... 8
~Matier of lntemann, 73 N. Y.2d 580 (1989)..................................................... ... 8
A1atler of Kiley, 74 N.Y.2d 364 (1989) ............................................................. 9,1 O
Nfatter of LaBombard, 10 N. Y.3d 823 (2008)... .. . .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. .. . 8
Nfatter of Lonschein, 50 N. Y.2d 569 (1980)...... .. .. . .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. . .. .. .. .. .. .. 9
A1atter of A1azzei, 81 NY2d 568 (1993) .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. . .. 7
Matter of Robert, 89 N. Y.2d 747 (1997).................. .... . . .. . . .. .. .. .. .. . .. . . .. .. .. . .. .. .. .. 8
Nfatter of Shilling, 51N.Y.2d397 (1980)......................................................... 1
Matter of Skinner, 91 N. Y.2d 142 (1997)...... .. .. .. .. .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 10
A1aller of Watson, 100 N. Y.2d 290 (2003)......................................................... 13
STATUTES
SCPA § 1404............................................................................................ 5
i
PRELIMINARY STATEMENT
This brief is submitted in reply to the New York Stale Commission on Judicial Conduct's
("Commission" or "Respondent") opposition brief and in further support of Petitioner Hon.
Cathryn Doyle's proceeding brought pursuant to the State Constitution and enabling statutes (NY
Const, art VI,§ 22, subcl. J\; Judiciary Law,§ 44(7)) to review the Commission's November 12,
2013 Determination, which sustained three charges of judicial misconduct and determined that
the appropriate sanction was her removal. 1
Summal]' of Commission's Opposition Argument
In its zeal to effectuate Judge Doyle's 'judicial beheading,"2 the Commission resorts to a
personal attack against her character and credibility. This effort includes an attempt to discredit
the uncontradicted, consistent and sworn testimony of several witnesses and related documentary
evidence and to substitute its own unfounded hypothesis created from fiction and not facts
contained in the record. Perhaps best indicative of the Commission's zeal to have Judge Doyle
removed is its effort to set aside all of the Referee's factual findings that are in any way
favorable to her and brand her a liar. On this issue of credibility the Commission advocates that
the Cou1i adopt supposition and surmise as incontrovertible fact instead of the factual
determinations of the Referee who had the benefit of witnessing four days oflive testimony.
The Commission's general attack is mounted on two fronts. The first attack is on Judge
Doyle's good faith misapplication of guiding principles, much of which resulted from the
differences between Surrogate's Court and other courts. Despite the Referee's determination
1 As this brief is submitted in reply, this brief is limited to responding to certain assertions made
in the Commission's opposition bricfand does not purport to restate all arguments set forth in
Petitioner's January 9, 2014 brief.
'lvlatter of Shilling, 51 N.Y.2cl 397, 405 (1980) (dissent. opn.).
that any misapplication was in good faith and is attributable to the procedural nuances between
Surrogate's Court and rules that, at the time of the conduct in question could have been clearer,
the Commission strains to create and advance an argument that her failure to recuse or disclose
was intentionally and deliberately done to violate such rules.
The second mode of" attack is the Commission's strained attempt to push forward every
possible argument and circumstance it can possibly think of to tip the scales in its attempt to
establish the requisite "truly egregious" circumstances necessary for removal. The Commission
argues that certain aggravating factors - factors that are simply not present in this case - wan-ant
removal, yet completely fails to address the many factors set forth in Petitioner's brief that this
Court has previously held mitigate against removal.
What is clear, despite over fifty pages of opposition by the Commission, is the following:
(!) Judge Doyle mistakenly and in good faith failed to recuse and/or disclose proceedings set
forth in Charges I and III involving her former attorneys; and (2) as also succinctly noted by the
Commission dissenters, the facts of this case do not rise to the level warranting removal.
2
POINT I
ANY MISAPPLICATION OF APPLICABLE
GUIDANCE \VAS MADE IN GOOD FAITH
The Commission has elected to mount its general attack despite, and in the face of, the
following irrefutable facts and findings:
' She testified:
The Referee, who witnessed Judge Doyle testily lirst-hand and therefore was in
the best position to make credibility determinations, found her testimony credible,
candid and truthful:
"she 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
described in Charges I and HI were mechanical, ministerial acts to which
there was no alternative actions available. She disqualified herself when
the proceedings developed otherwise." (R. 1857).
Judge Doyle's principle court attorney, a former two year clerk at the Appellate
Division, having been extended on merit, testified that she was directed to and
thoroughly researched the issues at bar and thereafter advised Judge Doyle as to
results of her research. (R. 343).3
The Referee found that any misunderstanding may have resulted from
differences between Surrogate's Court and other courts, stating:
"In hindsight the Ethics Opinions could have clearly stated
that there arc no mechanical, administrative or
ministerial acts that can be performed by any sitting judge.
Such a holding would have been better than the pretense
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).
3
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." (R. 1858).
The Commission dissenters also found good faith, noting: 'Tier analysis of the
law was wrong, but I credit her explanation that she made that dete1111ination in
good faith," (R. 26) and also noted: "for the most part, these Surrogate's Court
proceedings were not adversarial, contested matters" (id.) and also 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." (id.).
In the face of the foregoing and other favorable determinations as detailed in Petitioner's
initial brief, the Commission still attempts to elevate this case beyond what it is: a case in which
no one was harmed or prejudiced in any manner, and, as evidenced by the Commission's own
Complaint, which alleges solely an appearance of impropriety. (R. 96-148; 1847). Quite simply,
the Commission refuses to recognize and address a good faith defense simply because it retreats
to its position that Petitioner acted intentionally to flaunt the rules.
Consistent therewith, the Commission ignores and discards the nuances of Surrogate's
Court and the proceedings at issue, and, at the same time, attempts to impart materiality to things
that are, at best, completely irrelevant, even mischaractcrizing and improperly classifying certain
events and procedures in Surrogate's Court.
For instance, the Commission attempts to exacerbate the conduct at issue by noting that
some of the estates at issue were "still open" (see, e.g., Comm'n Br., pp. 12: ("[t]he estate was
still open"; "[t]he Porter estates were still open"). This, once again, fails to appreciate the fact
that Surrogate's Court deals with proceedings, not estates, and the determination of the presence
of conflicts varies from proceeding to proceeding. (See, Referee's Determination: "Unlike
Supreme Court all proceedings in Surrogate's Court are special proceedings. Once concluded a
4
new proceeding must be commenced until the estate is finally concluded. Therefore the
characterization of an estate in Surrogate's Court as 'still pending before the Surrogate' is
misleading. An Accounting proceeding, for example, may have totally different interested parties
(beneficiaries) than the probate proceeding in the same estate ... "). (R. 1850).
Additionally, the Commission attempts to elevate in importance certain matters by
misclassification. ror instance, it repeatedly mischaracterizes the deposition device provided in
SCP/\§ 1404 as both a "proceeding" (Comrn'n Br., p. 23) and a "hearing" (Comm'n. Br., p.
24). As was made clear at the hearing, same is a mere examination. (R. 1641).
Additionally, the Commission attempts to elevate the filing of an inventory of assets,
which is not a judicial proceeding, into a proceeding, once again creating the misimpression that
Judge Doyle ruled on or somehow presided over that filing. (Comm'n Br., pp. 13, 27).
Furthermore, the Commission even highlights the attorney fee paid to one of the
attorneys at issue to try and raise the specter of favoritism. (Comm'n Br., p. 13). This ignores
the fact that, in keeping with basic Surrogate's Court procedures, there never was a proceeding to
fix the fee or do a final accounting, and the fiduciary therefore paid the attorney without any
court involvement.
Additionally, unlike the Referee, the Commission refuses to address and continues to
ignore certain nuances in Surrogate's Court practice that defy a common sense application of
existing rules. As noted by the Referee:
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). If the proceedings below were on consent, one-sided, and effectively subject to a
mandated result, the question remains: how can Judge Doyle, who thought her actions were not
5
capable of partiality, be accused of deliberately attempting to disobey ethical guidance. By way
of example, the Commission asserts that Judge Doyle might not have had an issue or that
violations would be mitigated if' she had at least disclosed the relationships at issue. (Comm'n.
Br., pp. 51, 53). However, to whom should she have made such disclosures'74
4 As none of the proceedings at issue were contested or litigated in any manner, there were of
course no opposing parties. There remains the issue as to whom such disclosure should have
been made. Should she have made the disclosures to the persons that signed the waivers and
consents, the same persons constituting all of the interested parties requesting Judge Doyle grant
the very relief they were requesting? Should she have made the disclosure to the singular
attorney submitting the request for relief upon consent, despite the fact that said attorney
obviously knew of his prior association with Judge Doyle?
6
POINT II
THE COMMISSION HAS FAILED TO ESTABLISH "TRULY EGREGIOUS
CIRCUMSTANCES" NECESSARY TO \VARRANT THE SANCTION OF
REMOVAL
Faced with this Court's longstanding determination that the sanction of removal is to be
reserved for cases demonstrating "truly egregious circumstances" (Matier ofCu1111ingha111, 57
N. Y.2d 270, 275 (1982); Matier oflvfazzei, 81 NY2d 568 (1993)) and the aforementioned
determination by the Referee that Judge Doyle's failure to recuse and disclose was the result of
her good faith misapplication of governing rules for which she derived no personal gain, the
Commission makes a number of arguments that arc simply not supported by the record. Each of
these arguments are addressed below.
A. The Conduct At Issue Does Not V.1arrant Removal
The Commission's first argument is that Judge Doyle's misapplication of the rules
resulting in her failure to disqualify was so egregious that it evidences that she is not fit to be a
judge and, therefore, should be removed.
As noted both in Petitioner's prior brief and as detailed above, "removal should not be
ordered for conduct that amounts simply to poor judgment, or extremely poor judgment.'.' Matter
of Cunningham, 57 N. Y.2d at 275. Moreover, a misunderstanding of applicable rules has been
determined by this Court to be "relevant in weighing the appropriate sanction." A1atter of
Watson, I 00 N.Y.2d 290, 303 (2003).
In support of this argument, at pages 50-51 of its brief, the Commission cites several
failure to recuse cases that resulted in removal. All of these cases arc distinguishable in that the
conduct at issue in all of those cases is far more egregious than what is present in this case.
None of these cases cited by the Commission involve good faith and reasonable misapplications
7
of rules. Additionally, in the Commission's cited cases, actual favoritism was demonstrated. 5
For instance, in all of the cases cited by the Commission, the appearance of impropriety was very
public and actual harm was done, none of which happened in the instant case. Significantly, this
Court in Cunningham determined that since the appearance of impropriety was "limited lo the
eyes of only one person" and no harm was done, a penalty other than removal was warranted. 57
N. Y.2d at 275.
5 The cases cited by the Commission arc the following cases:
1. i\1aller ofLaBombard, 10 N.Y.3d 823 (2008) (in ordering removal, this Court
found "[w]ith knowledge of the rules governing judicial recusal, petitioner intentionally violated
them." Id. at 288. LaBombard involved a judge who, among other things, neglected to impose
an agreed upon term of community service for a family member, overturned his own prior bail
order for the son of a former coworker following an ex parte conversation, an intervention on
behalf of another family member in another court in order to give "the impression that the
codefendants were more culpable" than his relative (id. at 296) and the use of his judicial status
to "intimidate" another motorist following a motor vehicle accident with that motorist. (Id. at
298)).
2. 1\1atter o/Intemann, 73 N.Y.2d 580 (1989) (in addition to hearing "21 matters
brought by an attorney who was his close friend, business associate and personal attorney" (id. at
582) the judge found to have participated in three businesses organized for profit as well as
practicing law while still a judge).
3. Matter of Conti, 70 N.Y.2d 416 (1987) (in addition to dismissal of ticket in favor
of his friend/attorney, judge "or someone acting at his direction" (id at 418) found to have
altered traffic information and judge found to have given "patently false explanations" for his
actions. (Id at 417).
4. lvlatter of Robert, 89 N.Y.2d 747, 748 (1997) (removal ordered because of judge
"presiding over cases involving his friends notwithstanding that he had been previously
cautioned by the Commission on Judicial Conduct against presiding over such cases, and for
confronting a woman, in the presence of her employer, after she had sent a letter to the editor of
the local newspaper containing statements critical of petitioner."
5. Matter a/Fabrizio, 65 N.Y.2d 275, 276-277 (1985) (removal ordered where town
justice "engaged in numerous instances of egregious misconduct, including the seeking of
special consideration for two defendants in other courts, using racial slurs, altering transcripts,
advising his comt reporter to change stenographic notes that had been subpoenaed by the
Commission on Judicial Conduct, and sitting on a small claims case in which the defendant was
his dentist for 10 years without disclosing the relationship or offering to disqualify himself."
8
The Commission fails to address the many other established mitigating factors. As noted
in the Commission dissent, "[!]here is no allegation or finding that these attorneys or their clients
received any special treatment or pecuniary benefit because of her relationship with the
attorneys." (R. 26). This was also found by the Referee, who stated in his Report: "The
complaint docs 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 ofimpropriety[.]"). 6 This Court has repeatedly found a
mitigating factor exists where "petitioner neither sought not obtained any personal benefit" as a
result of the actions at issue. Dixon v. State Comm 'non Judicial Conduct, 47 N. Y.2d 523, 525
(1979); A1atter of Kiley, 74 N.Y.2d 364, 370 (1989); Nfatter of Skinner, 91N.Y.2d143, 144
(1997); Nfatter of Lonschein, 50 N.Y.2d 569, 573 (1980).
6 The C01m11ission's strained attempt to now create the illusion of favoritism is best evidenced by
their repeated reference to letters testamentary or letters of administration being granted in a
short timeframe for these attorneys. Such repeated references ignore the uncontroverted
testimony of both Judge Doyle and her principal court attorney that it was common practice and
a goal of the court that such letters would usually be issued within one day of application, a fact
that caused one Commission member to commend her during oral argument.
9
B. The Hearing Referee Was Correct in Determining that Judge Doyle Was
Forthright and Credible At the Hearing
The other main argument in which the Commission vests significant time and energy in
suppo11 of removal is its truly baseless assertion that Judge Doyle gave "less-than-forthright
hearing testimony." (Cornrn'n Br, p. !.).
This assertion is also entirely at loggerheads with the determination of the Referee that
Judge Doyle "was a credible and candid witness in my judgment and I believe she told the truth."
(R. 1857). Faced with this unequivocal factual detennination, the Commission unleashes an
attack on the Referee, asserting that "[t]hc Referee's credibility finding is mystifying at best."
(Comm'n Br, p. 58). The Commission makes this attack despite the fact that Referee Judge is an
experienced and highly respected practitioner of almost fifty years, who, as fact finder, was in
the best position to gauge Petitioner's credibility. (See, e.g., A1atter a/Skinner, 91N.Y.2d142
(1997); 1\1atter a/Kiley, 74 N.Y.2d 364 (1989). The Commission attempts to do this via the
microscopic examination of every action associated with Judge Doyle's short-lived 2007
campaign for Supreme Court. The Commission ignored the evidence and the differences
between Supreme Comi campaigns and other political campaigns.
Notably, despite the entirely consistent sworn testimony of Judge Doyle, her principal
court attorney, and attorney Matthew Kelly about the Judge's minimal knowledge of Mr.
Kelly's actions and how they were also of the opinion that Mr. Kelly's actions cumulating three
to four hours of work did not rise to the level of a "leadership role" (a term not yet defined in
2007), the Commission asserts that because the albeit short-lived and aborted campaign meets
the strict definition ofa "campaign," there must have been a "campaign manager." Mr. Kelly's
sworn testimony is especially significant because he is a former campaign manager for other
judges and a former Commission referee. He testified he was not a campaign manager or leader
10
for Judge Doyle in 2007. (R. 588-589). The Commission ignores this and brands !he campaign
as "her exlensive public effort to secure the Democratic Party nomination for Supreme Court
Justice" (Comm'n Br. p. 30)7 despite the fact that the only public actions taken was an
announcement or intention to run and her attendance at a single fundraiser. Judge Doyle testified
that the only other actions taken was her approaching various county chairpersons and
abandoning the effort after seeing she did not have their support. (R. 446-447).
The Commission attempts to advance this "less-than-forthright" argument largely to
buttress its next argument- that Judge Doyle's prior censure alone warrants removal.
C. .Judge Doyle's Prior Censure Does Not 'Varrant Removal
In its opening brief, Petitioner cited the sensible Commission dissent in the
Determination that Petitioner's prior discipline does not "elevate the sanction to removal on
these facts, especially since the earlier discipline was not related to the misconduct here" (R. 27).
The Commission tries to tie thal unrelated maUer to the conduct at issue to claim an insensitivity
to judicial ethics.
The Commission's main assertion is that the prior discipline is material because the
behavior at issue is related behavior, involving an asse1ied inability to be forthright and candid.
The Commission's other argument rests solely on the fact that Thomas Spargo had an
involvement in both matters. The Commission asserts that since Thomas Spargo was one of the
attorneys at issue in the subject case, it alone shows that Petitioner was not attuned to ethical
requirements. This assertion ignores the simple fact that the two matters have absolutely no
connection whatsoever. More importantly, improperly connecting them does not evidence an
"insensitivity to judicial ethics" (Comm'n Br., p. 55). At the time of his appearance in
7 See also, Comm'n Br. at p. 32: "a very public, albeit unsuccessful, campaign ... "
11
Surrogate's Court, Spargo was a licensed and admitted attorney. lfthe Petitioner did not believe
a conflict existed as a result of their friendship, there is nothing in the prior disciplinary case that
compels a different result. The Commission, using the hindsight into Spargo'sjudicial removal,
federal conviction, and disbarment, grafts its antipathy for him onto Petitioner
D. ,Judge Doyle Has Further Demonstrated A Willingness and Effort to Comply
with All Ethical Rules
Finally, the Commission attempts to argue, once again without basis in the record, that
Judge Doyle is a recalcitrant judge as evidenced by her "failure to acknowledge any impropriety"
(Comm'n Br, p. 59) and "hypertechnical rationalizations" (Comm'n Br., p. 50) and that removal
is farther warranted because, if Judge Doyle is not removed, she would almost certainly make
the same types of mistakes in the future.
The Commission makes this argument despite the fact that Judge Doyle stopped the
conduct at issue once it was brought to her attention and before any charges were brought against
her. Moreover, the testimony at the hearing established that Judge Doyle, on her own initiative,
implemented sweeping changes to her court upon the issuance of Advisory Opinion 11-43 in
order to help her and her staff to better identify possible conflicts. (R. 1676-1689; 358-371;
456). The Commission's argument also ignores the fact that most of the conduct at issue took
place almost five years ago and has not been repeated. 8
Finally, further evidence of the Commission's desire to stop at nothing to obtain the
removal of Judge Doyle is its assertion that Judge Doyle's "hype1ieehnical rationalizations" of
existing law and opinions evidence an unwillingness to abide by ethical requirements. The
'Charge I was from February 2008 through December 2009 (Determination, 'if 4, R.3). Charge II
covered conduct from 2007 through 2011. ('if 18, R. 6). Charge III covers actions taken in 2008.
('if 58, R. 15).
12
Referee, as more fully detailed in Petitioner's initial briet: aptly detailed the real world practice
in Surrogate's Court. (R. 1851-1852). Unhappy with this, the Commission dismisses statutory
law and common practice in Surrogate's Courts as "hypertechnical."
In conclusion, although Judge Doyle and her principal court attorney may have been
incorrect in their application of certain rules, their error turned upon the Judge's discrete view of
what is ministerial and what is discretionary. If she misapplied the rules because there are no
such "ministerial" procedures, then she acted in good faith. Said misunderstanding, which is
limited to a handful of the over 15,000 proceedings she presided over during the years at issue,
does not involve Judge Doyle, with her excellent record of service and recognized expertise,
unfit and in need of removal to safeguard the bench. See Watson, 100 N.Y.2d 290, 303 (2003)
("[T]he purpose of judicial disciplinary proceedings is not punishment but the imposition of
sanctions where necessary to safeguard the Bench from unfit incumbents"). Should the Court
uphold the finding of misconduct, the sanction of removal is unduly harsh and is not warranted.
CONCLUSION
For all the foregoing reasons, it is respectfully submitted that the Court should overturn
the Commission's finding of misconduct or, if that relief is not granted, reject the Commission's
proposed sanction of removal.
Dated: February 25, 2014
j:\wjd\doy!ca-12009\coa reply brief.docx
13
DREYER BOY AJIAJ:t.LP
~~i~-;;;r,(s~~
Craig M. Crist, Esq.
Attorneys for Hon. Cathryn Nf Doyle
75 Columbia St.
Albany, NY 12210
(518) 463-7784
