To Be Argued By
Edward Lindner, Esq.
Time Requested: 15 Minutes
QIuud uf Appraln
uftqr
~tatr uf Nrm lurk
In the Matter of the Request of the
CATHRYN M. DOYLE,
a Judge ofthe Surrogate's Court, Albany County,
Petitioner,
For Review of a Determination of the
NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT,
Respondent.
BRIEF FOR RESPONDENT STATE
COMMISSION ON JUDICIAL CONDUCT
ROBERT H. TEMBECKJIAN
Counsel for Respondent State
Commission on Judicial Conduct
Coming Tower, 23'd Floor
Empire State Plaza
Albany, New York 12223
518-453-4613
OfCounsel:
Edward Lindner, Esq.
Mary C. Farrington, Esq.
S. Peter Pedrotty, Esq.
Dated: February 10,2014
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORlTIES vi
PRELIMINARY STATEMENT 1
STATEMENT OF JURlSDlCTION AND STANDARD OF REVIEW 1
PROCEDURAL HISTORY
A The Formal Written Complaint... 2
B Petitioner's Answer 3
C. The Hearing 4
D. The Referee's Report 4
E. The Commission's Determination 6
THE FACTS 8
Charge I: Petitioner Failed to Disqualify Herself and Took Judicial
Action in Four Estates, Without Disclosing that Thomas J. Spargo,
the Attorney Representing the Petitioners, Was Petitioner's Close
Personal Friend and Was Representing Petitioner
in Two Lawsuits 8
A. Petitioner and Mr. Spargo are "as close as friends can get" ..... 8
B. Mr. Spargo represented Petitioner in two lawsuits 9
1. Cathryn M Doyle v Windsor Properties 10
2. Matter ofthe Application ofCathryn M Doyle and
Timothy Doyle v Town ofNew Scotland, Board of
Assessment Review and Julie Nooney 10
1
C. Petitioner presided over the Estates ofWilliam S. Wagoner,
Robert Porter, Esther May Porter and Mildred Johansson
without disclosing her relationship with Mr. Spargo and
that he was representing her in two lawsuits at the time of
the estate proceedings 11
1. Estate ofWilliam S. Wagoner 11
2. Estates ofRobert Porter and Esther May Porter.........12
3. Estate ofMildred Johansson 13
(,
Charge II: Petitioner Failed to Disqualify Herself and Took Judicial Action
in Four Matters Without Disclosing That Matthew J. Kelly,
who Appeared as an Attorney, Had a Leadership Role
and/or Served as Petitioner's Campaign Manager in Her
2007 and 2010 Campaigns 14
A. Petitioner has many years of experience working on
campaigns and litigating election law cases 14
B. Petitioner and Mr. Kelly are friends 14
C. Mr. Kelly was a volunteer in Petitioner's 2000 campaign...... 15
D. Mr. Kelly played a leadership role in, and was the de facto
manager of, Petitioner's 2007 campaign for Supreme
Court Justice 15
E. Mr. Kelly was Petitioner's campaign manager in her
20 I0 campaign for re-election as Albany County
Surrogate's Court Judge 19
F. Petitioner presided over the Estate ofWilliam J. Smith,
Trust ofMaxcy Kelly, Estate ofEvelyn Redick and Estate
ofIda Tassarotti without disclosing Mr. Kelly's leadership
role and/or service as Petitioner's campaign manager in her
2007 and 2010 campaigns for judicial office 20
11
1. Estate ofWilliam J Smith 20
2. Trust ofMaxcy Kelly F.B.O Sally Kelly 22
3. Estate ofEvelyn Redick 23
4. Estate ofIda M Tassarotti 25
Charge III: Petitioner Failed to Disqualify Herself and Took Judicial
Action in the Estate ofAlexander Raymond Gould, Without
Disclosing that William J. Cade, Who Represented the Decedent's
Mother, Had Represented Petitioner within the Preceding
Two years 27
A. Mr. Cade represented Petitioner in proceedings before the
Commission, which culminated in February 2007 28
B. In early 2008, Petitioner presided over the Estate of
Alexander Raymond Gould, without disclosing that the
decedent's mother's attorney, Mr. Cade, had represented
Petitioner within the preceding two years 28
ARGUMENT 29
POINT I
PETITIONER COMMITTED JUDICIAL MISCONDUCT UNDER
ANY REASONABLE, "GOOD FAITH" INTERPRETATION OF
THE RULES, THE PRECEDENTS OF THIS COURT, PRIOR
COMMISSION DETERMINATIONS AND PERTINENT
ADVISORY OPINIONS 31
A. The Rules Requiring a Judge to Disqualify Herself in Matters
Where Her Close Friend or Personal Attorney Appears Are
Well-Settled and Apply With Full Force in Uncontested, Non-
Adversarial Surrogate's Court Proceedings .32
1. The Rules requiring a judge's disqualification in cases
brought by the judge's close friend or personal attorney
are well-established 32
111
2. The disqualification rules fully apply in uncontested,
non-adversarial Surrogate's Court proceedings 34 (
3. The judicial action Petitioner took in these estates was
" . 11 d d" ".. . 1" 37not essentla y man ate or mlllistena .
4. At the very least, Petitioner should have disclosed her
relationship with Messrs. Spargo, Kelly and Cade 39
B. Petitioner Campaigned for Supreme Court Justice in 2007
and Surrogate's Court in 2010. Matthew Kelly Had a
Leadership Role in and/or Served as Campaign Manager in Both
Campaigns. The Advisory Opinions Clearly Put Petitioner on
Notice that She Was Required to Recuse 41
1. Petitioner had a 2007 campaign for Supreme Court
Justice 42
2. Mr. Kelly was Petitioner's campaign manager and/or
played a leadership role in her 2007 campaign for
Supreme Court Justice .45
3. Mr. Kelly was Petitioner's 2010 campaign manager 47
4. The Advisory Opinions available in 2007 clearly put
Petitioner on notice that she needed to disqualifY
herself in matters brought by Mr. Kelly 47
POINT II
PETITIONER SHOULD BE REMOVED FROM OFFICE 49
A. Standing Alone, Petitioner's Misconduct in Failing to DisqualifY
HerselfFrom Cases in Which Her Close Friend, Campaign
Manager and Personal Attorney Appeared, Warrants Her
Removal. 50
B. Petitioner's Prior Censure Is an Aggravating Factor that Further
Wa-rrants Her Removal. 54
IV
C. Petitioner's Sworn Hearing Testimony Was "Evasive and
Misleading" 56
D. Petitioner's Failure to Recognize the Impropriety ofHer Conduct
Further Compels RemovaL 59
CONCLUSION 60
v
TABLE OF AUTHORITIES
PAGE
CASES
Long v State, 7 NY3d 269 (2006) 34n7
Matter ofAmbrecht, 2009 Ann Rep 60 (Commn on Jud Conduct,
October 29,2008) 33, 38, 39, 39n12, 53
Matter ofBauer, 3 NY3d 158 (2004) 59
Matter ofBlackburne, 7 NY3d 213 (2006) 54n21
Matter ofConti, 70 NY2d 416 (1987) 32,33,50,57
Matter ofDoyle, 2008 Ann Rep III (Commn on Jud Conduct,
February 26, 2007) 54,57
Matter ofDurchin, 217 AD2d 582 (2d Dept 1995) 40n13
Matter ofDiBlasi, 2002 Ann Rep 87 (Commn on Jud Conduct,
November 19, 2001) 33
Matter ofFabrizio, 65 NY2d275 (1985) .40, 51, 54
Matter ofFeinberg, 5 NY3d 206 (2005) 37
Matter ofGeorge, _NY3d_ (2013) No. 249, slip op 31, 39, 51, 54, 55
Matter ofHamel, 88 NY2d 317 (1996) 55
Matter ofHedges, 20 NY3d 677 (2013) 54n21
Matter ofHuttner, 2006 Ann Rep 193 (Commn on Jud Conduct,
July 5, 2005) 33
VI
CASES (cont'd.)
Matter a/Intemann, 73 NY2d 580 (1989) 32, 34, 34n7, 50, 52, 54
Matter a/Kiley, 74 NY2d 364 (1989) 56, 57n24
Matter a/Kuehnel v Commn on Jud Conduct, 49 NY2d 465 (1980) 55, 55n22
Matter a/La Bombard, 11 NY3d 294 (2008) .40, 50, 53
Matter o/Lebedeff, 2006 Ann Rep 214 (Commn on Jud Conduct,
March 18, 2005) 33
Matter a/Marshall, 8 NY3d 741 (2007) 57,58
Matter a/Merrill, 2008 Ann Rep 181 (Commn on Jud Conduct,
May 14, 2007) 33
Matter a/Michels, 2012 Ann Rep 130 (Commn on Jud Conduct,
November 12, 2011) 44n17
Matter a/Phillips, Jr., 1990 Ann Rep 145 (Commn on Jud Conduct,
November 3, 1989) 33
Matter a/Restaino, 10 NY3d 577 (2008) 55n21
Matter a/Robert, 89 NY2d 745 (1997) 33,50,59
Matter a/Roberts, 91 NY2d 93 (1997) 39,53
Matter a/Ross, 1990 Ann Rep 153 (Commn on Jud Conduct,
September 29, 1989) 33
Matter a/Sims, 61 NY2d 349 (1984) 2,59
Matter a/Watson, 100 NY2d 290 (2003) 2
Matter a/Young, 19 NY3d 621 (2012) .40,50,53
Vll
STATUTES AND REGULATIONS
NY Constitution article VI, § 22(d) 1
11 CFR§100.72 43n16
11 CFR §100.131 43n16
Judiciary Law § 44(4) 2
Judiciary Law § 44(9) 1
Judiciary Law § 47 1
SCPA 401(4) 40n13
SCPA 1004 38
SCPA 1404 23,24
SCPA 1408 38, 38n11
RULES GOVERNING JUDICIAL CONDUCT
1OO.O(A) 42, 45
100.1 5,5n3
100.2 6,30
100.2(C) 5, 5n3
100.3(E) 36
100.3(E)(1) 6,30
100.3(F) 40n13
Vl11
OTHER AUTHORITIES
2000 Ann Rep of the NYS Commn on Judicial Conduct at 34 45
Adv Op 00-11 44
Adv Op 01-06 35,52
Adv Op 01-07 40n13, 48
Adv Op 02-34 44
Adv Op 02-108 48
Adv Op 03-64 48
Adv Op 04-106 48, 48n20
Adv Op 07-114 40n13
Adv Op 07-120 40nl3
Adv Op07-128 36,52
Adv Op 08-152 48n20
Adv Op 08-171 33, 33n6
Adv Op 08-174 33, 33n6
Adv Op 09-245 48
Adv Op 11-43 37, 40n13
Adv Op 92-54 33, 33n6
Adv Op 93-09 33, 33n6
Adv Op 94-05 35, 52
IX
Adv Op 94-12 35, 35n8, 52
Adv Op 94-05 '" 35
Adv Op 97-135 33, 33n6
Adv Op 99-67 33, 33n6
Robert Gavin, Censured Justice Plans Campaign Bid, Albany Times
Union, June 27, 2007 43nl5
NYS Advisory Committee on Judicial Ethics, Judicial Campaign Ethics
Handbook, 2013 Ed 45
x
PRELIMINARY STATEMENT
This brief is respectfully submitted by Counsel to the Commission on
Judicial Conduct ("Commission") in support of the Commission's Determination,
dated November 12,2013, that Judge Cathryn M. Doyle ("Petitioner") be removed
from office.
Petitioner committed judicial misconduct when she failed to disqualify
herself and took judicial action in numerous matters involving: (1) her close
personal friend and personal attorney, Thomas J. Spargo, (2) the manager of her
2007 and 2010 judicial campaigns, Matthew J. Kelly, and (3) her personal
attorney, William J. Cade, without so much as disclosing those relationships.
As discussed more fully herein, Petitioner'S egregious misconduct, standing
alone, warrants her removal from office. Her persistent failure to recognize the
impropriety ofher actions, her prior censure by the Commission for lack of candor
as to transactions involving the same Mr. Spargo, and her less-than-forthright
hearing testimony exacerbate her wrongdoing and compel a removal
determination.
STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction to review a Commission determination pursuant
to NY Constitution article VI, § 22(d) and Judiciary Law §§ 44(9) and 47, which
empower the Court to review the Commission's findings of fact and conclusions of
1
law and to accept the sanction of removal, to impose a lesser sanction, or to impose
no sanction.
The Court's review is plenary. Matter o/Watson, 100 NY2d 290,298
(2003). While the Commission's determination is afforded due deference, the
Court reviews the correctness of all the Commission's findings and conclusions.
Matter o/Sims, 61 NY2d 349, 353 (1984).
PROCEDURAL HISTORY
A. The Formal Written Complaint
Pursuant to judiciary Law § 44(4), the Commission authorized a Formal
Written Complaint, dated September 17,2012, containing three charges. Charge I
alleged that, in or about 2008 and 2009, Petitioner failed to disqualifY herself and
took judicial action in four estate matters without disclosing that the attorney
representing the petitioners, Thomas 1. Spargo, was Petitioner's close personal
friend and was representing Petitioner in two lawsuits at the time of the estate
proceedings (R98).1 Charge II alleged that, from in or about 2007 to in or about
2010, Petitioner failed to disqualifY herself and took judicial action in three estate
proceedings and one trust proceeding in which Matthew J. Kelly appeared as an
attorney, without disclosing that Mr. Kelly had a leadership role and/or served as
Petitioner's campaign manager in her 2007 and 2010 campaigns for judicial office
1 Citations preceded by "R" refer to pages of the Record on Review.
2
(Rl02). Charge III alleged that, in or about February 2008, Petitioner failed to
disqualify herself and took judicial action in an estate proceeding, without
disclosing that the petitioner's attorney, William J. Cade, had represented
Petitioner within the preceding two years (Rll 0).
B. Petitioner's Answer
Petitioner filed a Verified Answer dated October 11,2012. With respect to
Charge I, Petitioner admitted that she and Mr. Spargo were close personal friends
and that, in or about 2008 and 2009, Mr. Spargo was representing her in two
lawsuits. In connection with the allegations regarding Petitioner's actions in the
four estates in which Mr. Spargo appeared before her, Petitioner referred the
Commission to the specific papers and records in each proceeding. She denied that
she committed misconduct in connection with the four estate matters (R149-50).
With respect to Charge II, Petitioner denied that, in 2007, she was a
candidate for Supreme Court Justice, Third Judicial District, and that Mr. Kelly
played a leadership role in her campaign. Petitioner admitted that Mr. Kelly was
the campaign manager of her 2010 campaign for judicial office. In connection
with the allegations regarding Petitioner's actions in the four matters in which Mr.
Kelly appeared before her, Petitioner referred the Commission to the specific
papers and records in each proceeding. She denied that she committed misconduct
in connection with any of these estates (R150-5l).
3
With respect to Charge III, Petitioner admitted that Mr. Cade represented her
in proceedings before the Commission which culminated in the Commission's
February 26, 2007 Determination of Censure. With respect to the allegations
concerning Petitioner's actions in the matter in which Mr. Cade appeared before
her, Petitioner referred the Commission to the specific papers and records in the
proceeding, and denied she committed misconduct (R151-52).
C. The Hearing
By Order dated January 17,2013, the Commission designated H. Wayne
Judge, Esq., as Referee to hear and report proposed findings offact and
conclusions oflaw (R154). The hearing was held in Albany on March 19, 20 and
28,2013. Counsel for the Commission called five witnesses and introduced 220
exhibits into evidence (numbered 1 "38). Petitioner called two witnesses, testified
on her own behalf and introduced 45 exhibits into evidence (numbered A - S1)
(R155-647,671-2013).2
D. The Referee's Report
The Referee issued a report sustaining all of the allegations of Charges I, II
and III, and concluding that Petitioner violated the Rules Governing Judicial
2 A schedule ofpre-marked Commission exhibits and a schedule ofpre-marked Petitioner
exhibits were also introduced as Referee's Exhibit I and 2, respectively (R648-64). Ajudicial
ethics opinion was introduced as Referee's Exhibit 3 (R665-70).
4
(
Conduct ("Rules") cited in the Formal Written Complaint, with the exceptions of
Rule 100.1 as to all charges and Rule 100.2(C) as to Charges I and Ill.3
Withrespect to Charge I, the Referee found that Petitioner failed to
disqualify herself from and took judicial action in the Estate ofWilliam Wagoner,
Estate ofRobert Porter, Estate ofEsther May Porter and Estate ofMildred
Johansson, notwithstanding that Petitioner and Mr. Spargo were "very close
personal friend[s]" for nearly 40 years (RI853, 1859-61, 1873). He also found
that Petitioner failed to disqualify herself from Estate ofMildred Johansson
notwithstanding that Mr. Spargo was representing Petitioner in two lawsuits at the
time (RI853-54, 1859-61, 1873).
With respect to Charge II, the Referee found that Petitioner failed to
disqualify herself from and took judicial action in the Estate ofWilliam J. Smith,
Trust ofMaxcy Kelly, Estate ofEvelyn Redick and Estate ofIda Tassarotti,
notwithstanding that, within the preceding two years, Mr. Kelly had played a
leadership role in Petitioner's 2007 judicial campaign and had been the campaign
manager of her 2010 judicial campaign (RI855-56, 1857-58, 1862-71, 1874).
With respect to Charge Ill, the Referee found that Petitioner failed to
disqualify herself from and took judicial action in the Estate ofAlexander
3 The Referee's failure to find that Petitioner violated Section 100.1 of the Rilles appears to have
been inadvertent. It is not clear whether the Referee intentionally or inadvertently omitted to
find that Petitioner violated Section 100.2(C) with respect to Charges I and III (R1873, 1875). If
intentional, the Referee provided no reasoning for the omission. In any event, the Commission
found that both 100.1 and 100.2(C) were violated (R16).
5
Raymond Gould, notwithstanding and without disclosing that Mr. Cade had
represented Petitioner within the preceding two years (R1857, 1871-72, 1875).
E. The Commission's Determination
The Commission sustained all three charges. The Commission stated:
By presiding over multiple matters involving lawyers with whom
she had close personal and professional ties, [Petitioner] violated
well-established ethical standards requiring disqualification in any
proceeding in which ajudge's "impartiality might reasonably be
questioned" (Rules, §lOO.3[E][l]). Her failure to recuse in each of
these matters, or even to disclose the relationships that cast doubt on
her ability to be impartial, created an appearance of impropriety that
undermines public confidence in the integrity of the judiciary as a
whole (Rules §lOO.2).
(R17).
The Commission further found that Petitioner's misconduct in presiding
over these cases was "exacerbated" by the fact that she committed it "within
months after her previous censure by the Commission, demonstrating 'an
unacceptable degree .of insensitivity to the demands ofjudicial ethics'" (R17)
(citation omitted). That was especially true given that her prior discipline involved
misconduct on behalf of one of the lawyers-Thomas J. Spargo-involved in the
misconduct at issue here (R17-18).
The Commission expressly rejected Petitioner's insistence that her conduct
was consistent with the Rules. The Commission found that, "If as she maintains,
she analyzed the applicable mandates and determined that her actions were
6
permissible, her conduct shows exceedingly poor judgment and an inability to
recognize impropriety" (R21-22). The Commission also rejected Petitioner's
claim that her disqualification was not required because the matters were
uncontested and "her acts were non-discretionary and 'ministerial,'" noting that
"by law," her acts "require[d] the exercise ofjudicial authority" (R22).
The Commission also faulted Petitioner for her "evasive and misleading
hearing testimony" (R23-24). The Commission found that
[i]n the face ofpersuasive evidence to the contrary,
[Petitioner] attempted to minimize Mr. Kelly's role in her
2007 campaign, insisted that he was not her campaign
manager, testified that she had little knowledge ofhis
extensive activities on her behalf, and even maintained
that her seven-week effort to seek the Supreme Court
nomination "wasn't a campaign'" at all (though it
included two fundraisers, one ofwhich she attended)
(R23).
With regard to sanction, the Commission stated: "Under the circumstances,
we are constrained to view [Petitioner'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" (R24).
Two Commission members dissented as to sanction. They found that "for
the most part, these Surrogate's Court proceedings were not adversarial, contested
matters" and that there was "no allegation or finding that these attorneys or their
7
clients received any special treatment or pecuniary benefit" (R26). The dissenters
credited Petitioner's explanation for concluding that her conduct was permissible
under the Rules and did not believe she should be "penalized" because some ofher
hearing testimony lacked credibility (R26-27).
THE FACTS
Charge I: Petitioner Failed to Disqualify Herself and Took Judicial Action
in Four Estates, Without Disclosing that Thomas J. Spargo, the
Attorney Representing the Petitioners, Was Petitioner's Close
Personal Friend and Was Representing Petitioner in Two
Lawsuits.
In or about 2008 and 2009, Petitioner failed to disqualify herself and took
judicial action in the Estate ofWilliam Wagoner, Estate ofRobert Porter, Estate of
Esther May Porter and Estate ofMildred Johansson, without disclosing that
Thomas J. Spargo, the attorney representing the petitioners, was Petitioner's close
personal friend and was representing Petitioner in two lawsuits at the time ofthe
estate proceedings.
A. Petitioner and Mr. Spargo are "as close as friends can get."
As the Referee noted (R1847-48, 1859), Petitioner admitted that she and
Thomas J. Spargo have been close personal friends for almost 40 years (R263, 266,
296-99; R98 [FWC ~ 6]; R149 [Ans ~ 6]). Petitioner is the godmother of Mr.
Spargo's son (R297; R98 [FWC ~ 6]; R149 [Ans ~ 6]). Petitioner and Mr. Spargo
socialize frequently (R266, 297; R98 [FWC ~ 6]; R149 [Ans ~ 6]), including
8
{'''',
having meals together, attending family outings and sports and school events, and
visiting each others' homes (R266, 297; R98 [FWC,-r 6]; R149 [Ans ~ 6]).
Petitioner described her relationship with Mr. Spargo "as close as a friend can get"
(R299; R98 [FWC,-r 6]; R149 [Ans,-r 6]).
By a determination dated March 29, 2006, the Commission found that
Thomas J. Spargo should be removed from his position as a Supreme Court Justice
for, inter alia, soliciting funds from lawyers appearing before him to contribute to
his lega.l defense trust fund (R671-88 [Ex 1]). By a determination dated February
26,2007, the Commission censured Petitioner for her lack of candor in testimony
concerning her role in Mr. Spargo's legal defense trust fund (R707-23 [Ex 2]; R98
[FWC,-r 7]; R149 [Ans,-r 7]).
In August 2009, Mr. Spargo was convicted in the United States District
Court for the Northern District ofNew York of attempted extortion and soliciting a
bribe, and in December 2009, he was sentenced to 27 months in federal prison
(R724-25, 726-31 [Exs 3, 4]). Mr. Spargo was disbarred in December 2009, by
reason of his criminal conviction (R261; R732 [Ex 5]).
B. Mr. Spargo represented Petitioner in two lawsuits.
From in or about March 2008 until the date he was disbarred in December
2009, Mr. Spargo represented Petitioner in two lawsuits.
9
1. Cathryn M Doyle v Windsor Properties
On or about February 5, 2006, Petitioner fell and was allegedly injured at a
shopping plaza in Slingerlands, New York (R259-60; R890-91 [Ex 27B]). On or
about March 20,2008, Mr. Spargo filed a summons and complaint on Petitioner's
behalf in Supreme Court, Albany County, in an action entitled Cathryn M Doyle v
Windsor Properties (R259-60, 297, 302-03; R887- 96 [Exs 27A, 27B, 27C]; R98-
99 [FWC ~ 8]; R149 [Ans ~ 8]). Mr. Spargo filed an amended summons and
complaint on May 6,2008, adding Slingerlands Associates as a defendant (R897-
905 [Exs 27D, 27E]). The attorney for the defendants filed a third-party summons
and complaint in December 2009 (R909 [Ex 27G]). The case was still pending
when Mr. Spargo was convicted and disbarred (R260-61). Thereafter, Petitioner
was represented in the personal injury lawsuit by William J. Cade, and later by E.
Stewart Jones, Jr. (R260-61, 290-91, 302-03; R940A1 [Ex 27J]). A request for
judicial intervention was filed in January 2011, and the case was discontinued in
November 2012 (R938-41 [Exs 271, 27J]).
2. Matter ofthe Application ofCathryn M Doyle and Timothy Doyle
v Town ofNew Scotland, Board ofAssessment Review and Julie
Noonev
On or about July 29, 2008, Mr. Spargo filed a notice of petition, a verified
petition, and a request for judicial intervention on behalf of Petitioner and her
husband in Matter ofthe Application ofCathryn M Doyle and Timothy Doyle v
Town ofNew Scotland, Board ofAssessment Review and Julie Nooney, Assessor,
10
in Supreme Court, Albany County (R259, 261, 297, 302; R942-67 [Exs 28A-28C];
R99 [FWC ~ 9]; R149-50 [Ans ~ 9]). Prior to filing the petition, Mr. Spargo first
met informally with the assessor and later, in May 2008, appeared at the town
board of assessment review (R261-62). Mr. Spargo represented Petitioner and her
husband in the matter through settlement in or about October 2009, before
Supreme Court Justice John C. Egan, Jr. (R297, 302; R982-89 [Exs 28N-280]).
Mr. Spargo performed his legal services without charge (R99 [FWC ~ 10];
R150 [Ans ~ 10]).
c. Petitioner presided over the Estates ofWilliam S. Wagoner, Robert
Porter, EstherMay Porter and Mildred Johansson without
disclosing her relationship with Mr. Spargo and that he was
representing her in two lawsuits at the time of the estate
proceedings.
As the Commission found (R17-18), Petitioner did not disqualifY herself
from and took judicial action in four estate proceedings in which Mr. Spargo
represented the petitioners, without disclosing that she was close personal friends
with Mr. Spargo and that he was contemporaneously representing her in two
lawsuits.
1. Estate o[Wi!liam S. Wagoner
On February 20, 2008, Mr. Spargo personally filed a petition for letters of
administration c.t.a. after probate regarding the will ofWilliaIIl S. Wagoner (R263,
300; R991-95 [Ex 29B]; R99 [FWC ~ 11]; R150 [Ans ~ 11]). Petitioner handed
11
the petition to court staffer Kelli Bonacquisti directly and told her that it was okay
to issue the decree and letters; Ms. Bonacquisti wrote, "Okay per CMD," in the
court file to indicate Petitioner's approval (R225; R999 [Ex 29D]). This was
contrary to the normal procedure, which was for the papers to have been filed with
the record room, where they would be entered and given to the Chief Clerk to
review (R226-27). The day the Wagoner petition was filed, Petitioner signed the
decree granting administration c.t.a. after probate (R227; R886, 990-91, 1000 [Exs
25,26, 29A, 29B, 29E]; R99 [FWC ~ 11]; R150 [Ans ~ 11]).
In December 2008, Mr. Spargo filed an inventory of assets in the Wagoner
estate (R1002 [Ex 29G]). The estate was still open as of the date of Mr. Spargo's
disbarment in December 2009 (R273-74; R732 [Ex 5]). At no time did Petitioner
disclose her relationship with Mr. Spargo (R299-300; R878, 886 [Exs 25, 26]).
2. Estates ofRobert Porter and Esther May Porter
On February 29,2008, Mr. Spargo filed two petitions for letters of
administration for the estates of Robert Porter and Esther May Porter (R263;
R1027-32, 1058-63 [Exs 30B, 31B]). On February 29, 2008, the same day the
papers were filed by Mr. Spargo, Petitioner signed a decree granting letters of
administration for each estate (R300; R877, 886, 1040, 1071 [Exs 25, 26, 30D,
31D]). In or about December 2008, Mr. Spargo filed an inventory of assets for
each estate in Surrogate's Court (R1042-45, 1073-76 [Exs 30F, 31F]).
12
The Porter estates were still open as of the date of Mr. Spargo's disbarment
in December 2009 (R230-32; R732 [Ex 5]). Petitioner did not disclose her
relationship with Mr. Spargo (R299-300; R878, 886 [Exs 25, 26]).
3. Estate ofMildred Johansson
On April 23, 2008, Mr. Spargo filed a petition for probate ofthe will of
Mildred J. Johansson (R263; R 1089-1101 [Ex 32B]). On that same day, Petitioner
signed a decree admitting the will to probate (R300; R877, 886, 1114 [Exs 25, 26,
32G]). Ms. Bonacquisti also marked this file, "Okay per judge," to indicate
Petitioner's approval to process the estate filing, since the petition did not go
through the Chief Clerk according to normal procedure (R232-33; Rll13 [Ex
32F]). Petitioner signed the Chief Clerk's name on the letters testamentary (R233-
34; Rll15 [Ex 32H]).
In January 2009, Mr. Spargo wrote to the Surrogate's Court, requesting a
six-month extension of time in which to file the inventory of assets in the
Johansson estate, and Petitioner granted Mr. Spargo's request (R301-02; Rll16-17
[Ex 321, 32J]). On or about May 20, 2009, Mr. Spargo filed the inventory of
assets, totaling over $3.5 million (Rll18-21 [Ex 32K]).
Mr. Spargo's legal fee as the estate attorney was paid out of estate funds and
totaled over $27,000 (R274-75; R1601-05 [Ex 38M]). As of the date ofMr.
Spargo's disbarment in December 2009 (R732 [Ex 5]), the Johansson estate had
13
not been closed in Surrogate's Court and no accounting had been filed (R275).
Petitioner did not disclose her relationship with Mr. Spargo (R299-300; R878, 886 c
[Exs 25, 26]).
Charge II: Petitioner Failed to Disqualify Herself and Took Judicial Action
in Four Matters Without Disclosing That Matthew J. Kelly, who
Appeared as an Attorney, Had a Leadership Role and/or Served
as Petitioner's Campaign Manager in Her 2007 and 2010
Campaigns.
From in or about 2007 to in or about 2010, Petitioner failed to disqualify
herself and took judicial action in the Estate ofWilliam J Smith, Trust ofMaxcy
Kelly, Estate ofEvelyn Redick and Estate ofIda Tassarotti, in which Matthew J.
Kelly appeared as an attorney, without disclosing that Mr. Kelly served as
Petitioner's campaign manager in her 2007 and 2010 campaigns for judicial office.
A. Petitioner has many years of experience working on campaigns
and litigating election law cases.
For years, Petitioner was a Democratic committeewoman who worked on
many campaigns, including judicial campaigns (R443). As an attorney for Albany
County, Petitioner had also worked on between eight and twelve election law cases
(R442-43).
B. Petitioner and Mr. Kelly are friends.
Petitioner and Mr. Kelly have been friends and colleagues for over 30 years
(R584, 603). They served together as Democratic committeepersons and were
both active in t.~e New York State Bar Association (R499, 584, 603).
14
C. Mr. Kelly was a volunteer in Petitioner's 2000 campaign.
In November 2000, Petitioner ran for and was elected to a ten-year term as
Surrogate's Court Judge of Albany County (R604; Rl02 [FWC ~ 28]; R151 [Ans ~
28]). Mr. Kelly was a volunteer in her campaign (R444-45, 499, 585, 604; R102
[FWC ~ 28]; R151 [Ans ~ 28]).
D. Mr. Kelly played a leadership role in, and was the de facto
manager of, Petitioner's 2007 campaign for Supreme Court
Justice.
In 2007, while she was Surrogate, Petitioner was a candidate for Supreme
Court Justice, Third Judicial District {R606; R733-778 [Ex 6A]). As the
Commission found, Mr. Kelly "had a significant leadership role in her 2007
campaign" (RI9).
On June 19,2007, Petitioner "stood on the steps of the courthouse with a
banner that said, 'Kate Doyle for Supreme Court" and publicly announced her
candidacy for Supreme Court Justice (R500-01; R883 [Ex 26]). Mr. Kelly
attended the announcement (R500-01; R883 [Ex 26]). At or around the same time,
Petitioner met with Bernard Brown, C.P.A., who was her personal accountant, and
asked him to serve as her campaign treasurer (R186-89, 278, 609). Petitioner told
Mr. Brown, who had no experience as a campaign treasurer, that Mr. Kelly was the
"campaign manager" and that ifMr. Brown had questions, he could talk to Mr.
Kelly (RI90, 192,279,281-82; R839 [Ex 7]). Mr. Brown contemporaneously
15
memorialized his conversation with Petitioner in notes stating, "JIM KELLY
CAMPAIGN MGR," along with Mr. Kelly's phone number (RI91-92; R839 [Ex
7]).
On July 18,2007, Petitioner signed Board of Elections form CF-16 swearing
and affirming that she was a candidate for election to the office of Supreme Court
Justice (R777) and authorizing the "Friends ofJudge Cathryn Doyle" to file all
campaign disclosure statements on her behalf (R733-778 [Ex 6A]). On August 9,
2007, Mr. Brown filed with the Board ofElections the CF-16 form, a CF-02 form
registering the "Friends of Judge Cathryn Doyle" as a political committee and a
CF-03 form indicating that Petitioner had authorized the committee to take part in
her campaign (R189-90; R733-778 [Ex 6A]).
After Mr. Brown's initial meeting with Petitioner, he had no more
communications with her regarding the campaign (R202). Mr. Brown had
numerous communications with Mr. Kelly about the campaign's funds and
expenses over the ensuing months (RI92-201; R840-62 [Exs 8-19]).
Mr. Kelly personally ran a fundraiser for Petitioner's campaign at Crossgates
Restaurant on August 14,2007 (R279-80, 282, 498-99, 514, 587, 606, 608). Mr.
Kelly placed an advertisement in the Albany Times Union (R451, 505, 610; R840-
844 [Exs 8-9]). The Times Union recorded Mr. Kelly's name as the advertiser
(R610; R842-44 [Ex 9]). Mr. Kelly paid for the advertisement, and Petitioner's
16
campaign reimbursed him (R280; R751, 840, 875, 883 [Exs 6A, 8,25,26]). Mr.
Kelly ordered the printing of2,000 invitations (R280, 505, 606-07; R849, 883 [Exs
12,26]) and organized the mailing ofthe invitations (R282, 451, 505; R883 [Ex
26]). His law firm paid the postage for the mailings (R609; R845 [Ex 10]), and
Mr. Kelly's personal secretary initialed the postage record for the invitations
(R609; R845 [Ex 10]). Mr. Kelly sent the invitations to lawyers, law firms and
others listed on a mailing list he had compiled while managing other campaigns; he
guarded his list like the "Holy Grail" (R280, 282, 498-99, 505, 516, 588; R 883
[Ex 26]).
Mr. Kelly also ordered 2,500 lawn signs for Petitioner's campaign (R5l2,
609; R846-48, 850-51 [Exs 11, 13]). The bills for the 2,000 invitations and 2,500
campaign lawn signs were addressed to Petitioner's political campaign committee
at Mr. Kelly's office address (R607-08; R846-5l [Exs 11, 12, 13]). Mr. Kelly sent
the invoice for the lawn signs to Mr. Brown for payment (R609).
Mr. Kelly instructed the person who had arranged a campaign fundraiser at
the Victory Cafe to send the bill directly to him (R6l1; R852-53 [Ex 14]). Mr.
Kelly forwarded all of the invoices for Petitioner's campaign expenditures to Mr.
Brown (R193-97; R840-53 [Exs 8,9, 10, 11, 12, 13, 14]). Mr. Brown did not
attend any of the campaign events and had no personal knowledge of any of the
17
campaign's expenditures, other than from the documents supplied to him by Mr.
Kelly (RI94, 196-97,281).
The Democratic Party's Judicial Nominating Convention was held in or
about the end of September 2007 (R447). Petitioner did not get the Democratic
Party's nomination and did not run in the general election (RI02-03 [FWC ~ 29];
R151 [Ans ~ 29]).
After Petitioner failed to receive her party's nomination, Mr. Kelly advised
Mr. Brown that the unspent campaign contributions had to be refunded (RI98,
611-12; R854-55, 858-60 [Exs 15, 18]). At Mr. Kelly's direction, Mr. Brown
prepared the refund checks and delivered them to Mr. Kelly (R612). Mr. Kelly
then signed the cover letters enclosing the refund checks and sent them to the
contributors (R198"99, 612; R856 [Ex 16]). When Mr. Brown discovered that his
office had made a clerical error and sent incorrect refund amounts to some
contributors, he asked Mr. Kelly how to proceed (R199-200). Mr. Kelly advised
him to write to the contributors who received the incorrect amounts (R612"13; R
857-60 [Exs 17, 18]). The letters went out on campaign stationery under Mr.
Kelly's name (R612-13; R857 [Ex 17]). Mr. Kelly's supervision of the refund
process continued through at least October 2008 (R854-60 [Exs 15, 16, 17, 18]).
In or about September 2008, Mr. Kelly approved Mr. Brown's fee for acting
as campaign treasurer (R613; R861-62 [Ex 19]).
18
Petitioner's 2007 campaign received almost $32,000 in contributions from
individuals, partnerships and corporations and expended over $15,000 (R733-778
[Ex 6A]).
E. Mr. Kelly was Petitioner's campaign manager in her 2010
campaign for re-election as Albany County Surrogate's Court
Judge.
In 2010, Petitioner ran in a contested primary and general election and was
re-elected to another ten-year term as Surrogate's Court Judge of Albany County
(RI03 [FWC 'If 30]; R151 [Ans'lf 30]). Petitioner does not dispute that Mr. Kelly
served as the manager of her 2010 campaign (R585; R883 [Ex 26]; RI03 [FWC'If
30]; R151 [Ans'lf 30]). She has acknowledged from the outset that Mr. Kelly was
"involved in all aspects of [her] re-election campaign" (R883 [Ex 26]).
In or about December 2009, Petitioner notified the Chief Administrative
Judge ofher intention to run for re-election (R287). On March 17,2010, Petitioner
held a fundraiser for her campaign and publicly announced her candidacy (R287;
R863-66 [Ex 20]). Just as in 2007, Mr. Kelly printed and sent a mass mailing
announcing the fundraiser, once again using his own mailing list (R516). The
public announcement for the fundraiser named Mr. Kelly as the contact person and
provided Mr. Kelly's phone number (R863-66 [Ex 20]). On May 11, 2010,
Petitioner held a campaign rally at the Polish-American Citizens Club (R867-68
[Ex 21]). The event's public announcement named Mr. Kelly as the contact person
19
and provided his phone number (R867-68 [Ex 2ID.Petitioner's campaign website
also named Mr. Kelly as the contact person and provided his phone number (R871- (
72 [Ex 23D.
F. Petitioner presided over the Estate ofWilliam J. Smith, Trust of
Maxcy Kelly, Estate ofEvelyn Redick and Estate ofIda Tassarotti
without disclosing Mr. Kelly's leadership role and/or service as
Petitioner's campaign manager in her 2007 and 2010 campaigns
for judicial office.
From in or about 2007 through 2011, Petitioner did not disqualifY herself
from and took judicial action in four matters in which Mr. Kelly represented the
petitioners, without disclosing that Mr. Kelly played a leadership role and/or was
the campaign manager of her 2007 and 2010 campaigns for judicial office.
1. Estate a[William J Smith
In or about July 2003, Mr. Kelly filed a petition for probate and letters
testamentary in the Estate afWilliam J Smith (RI134-38, 1144 [Ex 33B, 33ED.
On or about February 7, 2006, Petitioner admitted the will to probate (RSOI-02;
R1163, 1164 [Exs 33N, 33-0D.
In May 2007, Mr. Kelly filed a petition for judicial settlement of the account
(RI166-77 [Ex 33QD, and in October 2007, he filed an amended petition, claiming
estate assets of $132,400 (RI178-91 [Ex 33RD. On October 4,2007, Petitioner
issued an order for service upon all persons interested in the estate, requiring them
to show cause why a decree should not issue settling the account and allowing
20
commissions and attorneys' fees (R502; R884, 1192 [Exs 26, 33S]). On
November 20,2007, Mr. Kelly appeared before Petitioner in Surrogate's Court;
Petitioner did not disclose her relationship with Mr. Kelly on the record (R1214
[Ex 33W]). On November 30, 2007, Petitioner issued an order appointing a
guardian ad litem for the infant distributees of the will (R502; R1215-20 [Ex
33X]).
On January 12,2009, Petitioner issued a decision determining that 14 infants
were the intended trust beneficiaries of the decedent's will and directing Mr. Kelly
to submit a decree in accordance with the ruling (R288; R1228-32 [Ex 33BB]). On
or about January 21,2009, Petitioner signed the submitted decree (R1233 [Ex
33CC]).
By letter dated September 1,2009, Mr. Kelly wrote Petitioner, requesting
that distributions be made to the beneficiaries in lieu of a trust (R1235 [Ex 33DD]).
In or about November 2009, Petitioner's confidential law clerk advised Mr. Kelly
that he would need to bring a petition to terminate the trust (RB17 [Ex 33RR]).
In January 2010, Mr. Kelly filed on behalf of the executor a petition to
terminate the trust (R1236-39 [Ex 33EE]), and in June 2010, he filed an amended
petition to terminate the trust (R1255-72 [Ex 33HH]). By email dated June 7,
2010, Petitioner advised the court clerk that she had "referred the case to Judge
Walsh for any further proceedings" (R1273 [Ex 33-11]).
21
In June 2011, a new guardian ad litem assigned by Acting Surrogate
Jonathan Nichols filed a report concluding that the executor should not be
permitted to avoid the creation of the trust for the 14 beneficiaries (RI283-1316
[Ex 33QQ]). The guardian ad litem also alleged that the executor had engaged in
self-dealing and had failed to account for almost $1 million in estate assets
(R1283-1316 [Ex 33QQ]).
During the course of the Smith case, Petitioner did not disclose Mr. Kelly's
role in her 2007 and 2010 judicial campaigns (R288, 494, 615; R884 [Exs 26]).
2. Trust ofMaxcy Kelly FE. 0 Sally Kelly
In or about July 2005, Mr. Kelly filed a petition for appointment ofhimself
and his brother, Charles P. Kelly, as successor trustees for the testamentary trust
for the benefit of their disabled aunt (R1330-43 [Ex 34B]). On or about July 20,
2005, Petitioner issued an order appointing them successor trustees (R1344 [Ex
34C]).
In or about March 2007, Mr. Kelly and his co-trustee petitioned to invade
the corpus of the trust (R282-83, 286, 478; R1345-48 [Ex 34D]). By decision and
order dated August 28, 2007, Petitioner granted the petition for invasion of the
trust corpus (Tr R282-83, 286, 478; R1371-74 [Ex 34F]). While presiding over
Mr. Kelly's petition, Petitioner knew Mr. Kelly was active in her 2007 campaign
for Supreme Court Justice (R282-83). Petitioner issued her decision and order
, 22
while her campaign was active and a mere two weeks after the campaign
fundraiser that Mr. Kelly arranged at the Crossgates Restaurant (R504; R840-44,
1371-74 [Exs 8, 9, 34F]).
In presiding in Kelly, Petitioner did not disclose Mr. Kelly's role in her 2007
campaign for Supreme Court Justice (R494, 615).
3. Estate ofEvelyn Redick
In or about April 2006, Mr. Kelly filed a petition for probate and letters
testamentary for the estate ofEvelyn G. Redick on behalf of the petitioner, Shirley
Smith (R1383-87 [Ex 35C]). Mr. Kelly was a witness to the will, which was
executed in 2001 (R876, 884-85,1429-63 [Exs 25, 26, 35N]). Mr. Kelly filed an
amended petition on or about September 25, 2006 (R1388-92 [Ex 35D]).
On or about September 25,2006, Petitioner issued a citation (R1399-1406
[Ex 35H]). On the return date, Petitioner, inter alia, signed an order appointing
James P. Milstein, Esq., as guardian ad litem for one of the distributees (R1398,
1407-12 [Exs 35G, 351]).
On or about April9, 2007, the guardian ad litem filed a report, indicating,
inter alia, that Shirley Smith may have exerted undue influence over the decedent
and recommending that a proceeding pursuant to SCPA §1404 be conducted to
determine the mental capacity of the decedent at the time the will was executed
(RI414-26 [Ex 35K]).
23
By letter dated April 18, 2007, Mr. Kelly requested Petitioner's permission
to make an application to have the estate pay the funeral bill (R1427 [Ex 35L]). A
handwritten notation indicates, "No estate yet - Ltrs not issued. Should get
prelims" (R1427 [Ex 35L]).
By letter dated April 19, 2007, Petitioner's secretary advised Mr. Kelly and
Mr. Milstein that an SCPA §1404 hearing was scheduled (R1428 [Ex 35M)). On
May 21, 2007, Petitioner presided over the hearing, at which Mr. Kelly testified as
a witness (R1429-63 [Ex 35N]).
On June 15,2007, Mr. Milstein wrote to Petitioner requesting that she
postpone the requirement for filing objections to the probate ofthe will and allow
him to subpoena medical records of the decedent (R1464 [Ex 35-0]). On J\lIle 27,
2007, Petitioner's law clerk notified Mr. Milstein that Petitioner extended the time
for objections to 20 days from receiptofthe decedent's medical records (R 1465
[Ex 35P]).
By letter dated December 14, 2007, Petitioner's secretary advised the
attorneys that the court had heard nothing regarding the estate since the June
extension was granted, and requested a report on the status of the estate within
three weeks (R1466 [Ex 35Q]).
By letter dated December 17, 2007, Mr. Kelly advised Petitioner that he had
been responsible for the delay in providing Mr. Milstein with requested records,
24
and that Mr. Milstein had no objection to the payment of the funeral bill (R1467
[Ex 35R]). By order dated January 30, 2008, Petitioner directed Mr. Kelly's firm
to pay the bill (R1470 [Ex 35U]).
On or about October 1, 2009, Mr. Kelly filed an application for preliminary
letters testamentary on behalf of Shirley Smith (R1487-89 [Ex 35BB]). The Chief
Clerk notified Mr. Kelly that his papers were insufficient (R1379, 1491 [Exs 35B,
35DD]). On or about April 20, 2010, Mr. Kelly filed a petition for probate and
letters testamentary (R1490 [Ex 35CC]), and by letter dated April 26, 2010, the
Chief Clerk advised him how to correct his application (R1491 [Ex 35DD]). On or
about May 21, 2010, Mr. Kelly filed another application for preliminary letters
testamentary (R1492-96 [Ex 35EE]). The Chief Clerk's notes indicate that she
sent the file to Petitioner's chambers for decision (R1379 [Ex 35B]).
In or about January 2011, Administrative Judge George Ceresia re-assigned
the Estate ofRedick after Petitioner disqualified herself (R1497 [Ex 35FF]).
In presiding over the Redick estate, Petitioner did not disclose Mr. Kelly's
role in her 2007 or 2010 campaign (R250-51, 494; R884 [Ex 26]).
4. Estate ofIda M Tassarotti
In or about January 2010, Mr. Kelly filed an amended petition for probate
and supporting records with regard to the will ofIda M. Tassarotti (R1507, 1508-
12 [Exs 36E, 36F]). On January 28, 2010, Petitioner issued a citation to all
25
interested persons requiring them to show cause on March 2,2010, why the will
should not be admitted to probate and why letters testamentary should not be
issued to Anthony G. Tassarotti (R1520 [Ex 36H]); Petitioner also issued a citation
to a beneficiary who was in a nursing home (R1521 [Ex 361]).
By letter dated February 16,2010, Mr. Kelly asked Petitioner for permission
to list the decedent's home for sale (R1522 [Ex 36J]). A handwritten note on the
letter indicates, "Will send in appl for prelim letters" (R1522 [Ex 36J]).Mr. Kelly
filed an application for preliminary letters testamentary dated February 22, 2010
(R1523-24 [Ex 36K]). On February 24,2010, Petitioner issued an order granting
preliminary letters with limitations (R1525 [Ex 36L]).
On March 2,2010, Petitioner presided over the return of citation (R1527 [Ex
36N]). Mr. Kelly appeared in court, and Petitioner determined that service was
complete and assigned Thomas Latin, Esq., as guardian ad litem for Ida Tassarotti,
the nursing home resident (RI527, 1528-30, 1534 [Exs 36N, 36-0, Ex 36Q]). On
March 18, 2010, Mr. Latin filed a report dated March 11, 2010, recommending that
the will be admitted to probate (RI531-33 [Ex 36P]).
On March 19,2010, two days after Petitioner's campaign held a fundraiser,
at which Petitioner and Mr. Kelly were both present (R287, 515, 591; R863-66 [Ex
20]), Petitioner signed a decree, admitting the Tassarotti will to probate (R516"17;
26
R1541 [Ex 36S]). At the time, Mr. Kelly was actively working on Petitioner's
campaign (R591; R875, 884 [Exs 25, 26]).
In or about September 2010, Mr. Kelly filed an inventory of assets with the
court in the Tassarotti matter (R1543-46 [Ex 36U]). In or about December 2010,
Mr. Kelly filed an amended petition for judicial settlement of the account of the
executor (R1547-51 [Ex 36V]).
By letter dated January 7, 2011, Petitioner advised Administrative Judge
George B. Ceresia, Jr., that she was recusing herself from the matter (Rl553 [Ex
36X]). A letter dated January 13, 2011, from Administrative Judge George B.
Ceresia, Jr., to the Chief Clerk of the Surrogate's Court indicates that Petitioner
had recused herself and that the proceeding was being assigned to Judge George
Pulver, Jr. (Rl554 [Ex 36Y]).
While presiding over the Tassarotti estate, Petitioner did not disclose that
Mr. Kelly was her campaign manager in 2010 (R494; R875-76, 884 [Exs 25, 26]).
Charge III: Petitioner Failed to Disqualify Herself and Took Judicial Action
in the Estate ofAlexander Raymond Gould, Without Disclosing
that William J. Cade, Who Represented the Decedent's Mother,
Had Represented Petitioner within the Preceding Two Years.
In or about February 2008, Petitioner failed to disqualifY herself and took
judicial action in the Estate ofAlexander Raymond Gould, without disclosing that
William J. Cade, who represented the decedent's mother, had represented
Petitioner within the preceding two years.
27
A. Mr. Cade represented Petitioner in proceedings before tbe
Commission, which culminated in February 2007.
There is no dispute that Petitioner was represented by William J. Cade in
proceedings before the Commission which culminated in the Commission's
February 26, 2007 Determination that Petitioner be censured for judicial
misconduct (R707, 877, 885 [Exs 2, 25, 26]; R110 [FWC' 68]; R151 [Ans, 68)).
For many years, Petitioner has also maintained a social relationship with Mr. Cade
(R292-93; Rl10 [FWC' 68]; R151 [Ans, 68)).
B. In early 2008, Petitioner presided over the Estate ofAlexander
Raymond Gould, without disclosing that the decedent's mother's
attorney, Mr. Cade, had represented Petitioner within the
preceding two years.
On or about January 30, 2008, Mr. Cade filed a petition by Cynthia Gould
Becker for letters of administration as to the estate ofher son, Alexander Raymond
Gould (R1559-64 [Ex 37C)). The affidavit accompanying the petition stated that
the letters of administration were "necessary to bring an action for pain and
suffering and for wrongful death" (R1565-66 [Ex 37D)). Mr. Cade notarized the
petition and affidavit (R1563, 1566 [Ex 37C, 37D]).
On or about February 5, 2008, Petitioner signed a decree granting limited.
administration to Ms. Becker (R293-94; R874, 885, 1567 [Exs 25, 26, 37E)), and
on the same date, the letters of administration with limitations were issued (R1568
28
[Ex 37F]). Later in February 2008, Mr. Cade filed a wrongful death action on
behalf of the estate (R1589 [Ex 37J]).
On or about July 21, 2008, Mr. Cade filed or caused to be filed in
Surrogate's Court a petition by Ms. Becker for leave to compromise and settle the
wrongful death action for a gross amount of$100,000, including a legal fee of
$33,000 to Mr. Cade (R1574-87 [Ex 37-1]). Mr. Cade notarized the petition and
filed his own affidavit and supplemental affidavit in connection with the petition
(R1579, 1588-92, 1596-97 [Exs 37-1, 37J, 37K]).
Upon the court.'s receipt of the petition for leave to compromise and settle,
Petitioner told Mr. Cade that she would not be handling it and that it would be
referred to another judge (R294). Petitioner did not make any record ofher
disqualification from the matter (R294). Petitioner sent the file to Family Court
Judge Margaret Walsh, who was cross-designated as an acting Surrogate (R294-
96; R877, 885 [Exs 25, 26]), and Judge Walsh ruled on the petition (R1598-1600
[Ex 37L]).
At no time did Petitioner disclose her relationship with Mr. Cade (R877, 885
[Exs 25, 26]).
ARGUMENT
The record in this case depicts a judge who has a cavalier relationship with
the Rules Governing Judicial Conduct. Any reasonable jurist who faced the
29
circumstances presented here would have sought to "avoid impropriety and the
appearance of impropriety," by disqualifYing herself in any "proceeding in which
[her] impartiality might reasonably be questioned" (Rules 100.2, 100.3[E][1]. A
judge mindful of the reasonable appearance to others that she favored her close
friends and personal attorneys would have, at the very least, disclosed those
relationships on the record. A diligent judge who believed that existing precedent
did not precisely cover her situation Would have sought guidance from the
Advisory Committee on Judicial Ethics.
Petitioner did none ofthese things. Instead, Petitioner lOOked for
"hypertechnical" exceptions and perceived ambiguities that might arguably permit
the course she had already chosen to follow. Thus, while Petitioner waS aware that
her personal attorneys could not appear before her, she rationalized that it was
permissible for Mr. Spargo and Mr. Cade to do so because Surrogate's Court is
"different" and the matters were "ministerial" or ''uncontested.'' Petitioner was
aware that a judge may not sit on cases brought by her campaign manager but
rationalized presiding with respect to Mr. Kelly with the fiction that her extensive
public effort to secure the Democratic Party nomination for Supreme Court Justice
in 2007 was not really a "campaign."
As the Commission found,
[i]f, as [Petitioner] maintains, she analyzed the applicable
mandates and determined that her actions were permissible, her
30
conduct shows exceedingly poor judgment and an inability to
recognize impropriety.
(R21-22). Such "[h]ypertechnical arguments" evidence Petitioner's "failure to
appreciate a Judge's continuing obligation to avoid even the appearance of
impropriety." Matter ofGeorge, _ NY3d _ (2013), No. 249, slip op. at 12.
POINT I
PETITIONER COMMITTED JUDICIAL MISCONDUCT
UNDER ANY REASONABLE, "GOOD FAITH"
INTERPRETATION OF THE RULES, THE PRECEDENTS
OF THIS COURT, PRIQR COMMISSION
DETERMINATIONS AND PERTINENT ADVISORY
OPINIONS.
Contrary to Petitioner's argument (Pet Br 13-19),4 the ethical rules requiring
her disqualification were not "debatable." There is no "good faith" interpretation
of the then-extant precedent that could conceivably support her claim that it was
permissible to sit in Surrogate's Court proceedings brought by her close friend, her
personal attorney or her campaign manager.
Indeed, what is most striking about Petitioner's argument that her conduct
rested on a "different interpretation" ofthe law (pet Br 13) is the complete absence
of any citation to the law on which she allegedly relied. In six pages of argument
Petitioner cannot cite a single precedent - no case of this Court, no Commission
determination and no Advisory Opinion - that suggests that the Rule requiring a
4 References to "Pet Br" refer to pages of the Petitioner's brief
31
judge to disqualify herself where her "impartiality might reasonably be
questioned" is applied differently in Surrogate's Court. She doesn't cite a single
case, determination or opinion that suggests the disqualification Rule does not
apply when the matter is uncontested or "non-adversarial." And she cites no
authority of any kind holding that a very public, albeit unsuccessful, campaign for
the Democratic nomination for Supreme Court was not really a "campaign."
In contrast, as is set forth below, there is considerable precedent holding that
Petitioner's decision to sit on Surrogate's Court matters brought by Messrs.
Spargo, Kelly and Cade was misconduct.
A. The Rules Requiring a Judge to Disqualify Herself in Matters
Where Her Close Friend or Personal Attorney Appears Are
Well-Settled and Apply With Full Force in Uncontested, Non-
Adversarial Surrogate's Court Proceedings.
Well-established ethical Rules require a judge to disqualify herself when a
lawyer appearing in the proceeding is her close friend or personal attorney.
Petitioner's claim that she reasonably believed these rules did not apply to the
"different procedures" in Surrogate's Court (Pet Br 18) is without merit.
1. The Rules requiring a judge's disqualification in cases
brought by the judge's close friend or personal attorney
are well-established.
Both this Court and the Commission have consistently held that a judge's
disqualification is required in matters involving the judge's close friend. See, e.g.,
Matter ofIntemann, 73 NY2d 580, 582 (1989); Matter ofConti, 70 NY2d 416,
32
418-19 (1987); Matter ofRobert, 89 NY2d 745 (1997); Matter ofHuttner, 2006
Ann Rep 193, 194-95 (Commn on Jud Conduct, July 5, 2005);5 Matter ofLebedefJ,
2006 Ann Rep 214, 216 (Commn on Jud Conduct, March 18,2005); Matter of
DiBlasi, 2002 Ann Rep 87, 91-92 (Commn on Jud Conduct, November 19,2001).
It is equally well-established that a judge's disqualification is required in
matters involving the judge's personal attorney. See, e.g., Matter ofConti, 70
NY2d at 418-19; Matter ofIntemann, 73 NY2d at 582; Matter ofAmbrecht, 2009
Ann Rep 60, 63 (Commn on Jud Conduct, October 29,2008); Matter ofMerrill,
2008 Ann Rep 181, 187 (Commn on Jud Conduct, May 14,2007); Matter of
Phillips, Jr., 1990 Ann Rep 145, 148 (Commn on Jud Conduct, November 3,
1989); Matter ofRoss, 1990 Ann Rep 153, 155-56 (Commn on Jud Conduct,
September 29,1989). The Advisory Committee on Judicial Ethics has published
numerous opinions stating that disqualification is required during the period of
representation and thereafter for two years. See, e.g., Adv Ops 92-54, 93-09, 97-
135,99-67,08-171/08-174.6
5 Commission determinations are available on the Commission's website at www.cjc.ny.gov.
6 Advisory Opinions 92-54, 93-09, 97-135, and 99-67 were modified, in part, by Advisory
Opinion 08-171/08-174. The opinions still hold, however, that a judge must disqualify herself,
subject to remittal, when the judge's personal attorney appears in her court within two years after
the end ofthe representation.
33
2. The disqualification rules fully apply in uncontested,
non-adversarial Surrogate's Court proceedings.
Petitioner's claim that she reasonably believed these well-established
disqualification Rules did not apply to the "different procedures" in Surrogate's
Court (Pet Br 18) was correctly rejected by the Commission (R22). There is ample
precedent applying the disqualification Rules to uncontested Surrogate's Court
matters and nowhere in any of that authority is there any suggestion that the Rules
do not apply to uncontested, non-adversarial estate matters.
As early as 1989, this Court removed a judge sitting in Surrogate's Court,
Family Court and County Court where the judge, inter alia,
[h]eard 21 matters brought by an attorney who was his
close friend, business associate and personal attorney.
The nature of the relationship was such that to avoid the
appearance of impropriety and the potential for a conflict
of interest, petitioner should have disqualified himself
from those cases.
Matter ofIntemann, 73 NY2d 580,582 (1989)?
Directly contradicting Petitioner's claim that prior to 2011, the Advisory
Opinions were "unclear" (pet Br 14), the Advisory Committee on Judicial Ethics
7 The fact that the Court's opinion does not specifY whether these 21 cases were heard in
Surrogate's Court does not help Petitioner, since any ambiguity should have spurred further
"good faith" inquiry. In fact, however, a review ofthe record on review filed in this Court in
Intemann reveals that 16 of the 21 cases were estate matters. This Court may take judicial notice
of these court records. Long v. State, 7 NY3d 269, 275 (2006). The record of the Commission's
proceeding in Irltemann is also available to the public at any of the Commission's offices. See
http://cjc.ny.gov/public_records.htm.
34
issued a number of earlier opinions that should have alerted Petitioner to her
ethical obligation to recuse herself in cases brought by Messrs. Spargo, Kelly and
Cade.
In 1994, the Committee opined that a Surrogate's disqualification was
required where a party's attorney was the judge's campaign manager,
notwithstanding that "the matters might be routine, non-contested or
administrative." Adv Op 94-12 (emphasis added).8
In a separate 1994 opinion, the Advisory Committee recognized that in
Surrogate's Court, many matters "do not involve situations with opposing
counsel," but found that "[t]he fact that there will often be no opposing counsel ...
does not diminish the impression of an appearance of impropriety." As a result,
the Advisory Committee found that for a period of two years, a Surrogate must
recuse herself from all matters in her court "in which the judge's former law firm
represents a petitioning fiduciary." Adv Op 94-05.
In 2001, the Advisory Committee counseled that a Surrogate must disqualify
herself in any matter brought by a member ofher former law firm. Adv Op 01-06.
Squarely addressing the issue that Petitioner raises here, the Committee wrote:
8 Given the unequivocal language of Advisory Opinion 94-12, Petitioner's relianCe on the flawed
legal analysis ofthe Referee (Pet Br 8, 15) is misplaced. Contrary to the Referee's view (Pet Br
15), the "Ethics Opinions" did clearly state "that there are no mechanical, administrative or
ministerial acts that can be performed" by a judge where the attorney is in the "tainted class" and
that "there is an appearance of impropriety regardless of how innocuous the judicial activity may
be."
35
Disqualification is required in both contested and
uncontested matters because in either instance ... the
closeness in the former relationship could give rise to an
appearance of impropriety.
Id. (emphasis added). It is impossible to conceive how anyone reading these three
Advisory Opinions in "good faith" could conclude that it is permissible for a
Surrogate to issue Letters in matters brought by her close friends or her personal
attorney simply because the matters were "uncontested" (Pet Br 16n4).9
Most significantly, in 2007 - six months after Petitioner was censured by the
Commission and at a time Petitioner testified she was "cutting out the daily
Marlow committee recommendations and studying them" (R305) - the Advisory
Committee issued an opinion clearly applying section 100.3(E) of the Rules to
Surrogate's Court. Advisory Opinion 07-128 addressed questions from a newly-
elected Surrogate who inquired whether he could sit in proceedings brought by an
attorney who was representing the judge's son in an unrelated matter. The
Surrogate also sat as an Acting Supreme Court Justice.
The Advisory Committee found that the judge was "disqualified from
presiding in contested and uncontested matters when the attorney who represents
the judge's adult child appears in the judge's court." Adv Op 07-128 (emphasis
9 In her brief to the Commission Petitioner made much of the fact that the matters brought by
Messrs. Spargo, Kelly and Cade were largely "uncontested" proceedings. See, e.g., R1959-64
and passim. In a tacit admission that the Advisory Opinions clearly hold that a Surrogate must
recuse "in both contested and uncontested" proceedings whenever her impartiality might be {
questioned, Petitioner has almost entirely abandoned the phrase "uncontested" in her brief to this
Court.
36
added). Unlike Petitioner (RI6), the Committee made no distinction between
proceedings commenced in Surrogate's Court and matters in Supreme Court. !d.
Thus, contrary to Petitioner's argument (pet Br 14-15), the rules as to
disqualification, even in uncontested proceedings, were clear prior to the 2011
Advisory Opinion.
3. The judicial action Petitioner took in these estates was
not "essentially mandated" or "ministerial."
Contrary to Petitioner's claim (Pet Br 14), the judicial action she took in
these estates was not "essentially mandated ... by statute" (pet Br 14) or
"ministerial" (Pet Br 16).10 As the Advisory Committee has said, admitting a will
to probate is a "fundamental and highly significant" exercise ofjudicial authority.
Adv Op 11-43. Petitioner herself concedes that admitting a will to probate
requires the Surrogate to determine whether a ''prima facie showing ofthe
requirements of a valid will" has been made (R290).
Petitioner's repeated suggestion that Advisory Opinion 11-43 should be
discounted because it was issued after the conduct described in the Formal Written
Complaint (Pet Br 4,7, 15) ignores the plain language ofthe SCPA, with which
Petitioner had "an obligation to familiarize [herself]." Matter ofFeinberg, 5 NY3d
10 Petitioner apparently no longer argues, as she did before the Referee (R1793, 1795, 1808) and
the Commission (RI966, 1968, 1970, 1974) that she "lacked discretion" and that "the law
mandates only one result" in the Surrogate's Court proceedings at issue here.
37
206,214 (2005). Petitioner is an experienced jurist who previously served as the
Chief Clerk ofthe Albany Surrogate's Court for twenty years (R2). She was an
adjunct professor at Albany Law School who taught courses on Surrogate's Court
practice (R2).
Given her background, Petitioner surely knew that SCPA 140811 requires
that "[b]efore admitting a will to probate the court must inquire particularly into all
the facts and must be satisfied with the genuineness of the will and the validity of
its execution." SCPA 1004 provides that "in a proceeding for letters of
administration ... the court must inquire into the facts and take proof thereof and
... may make a decree ... directing the issuance of letters" (emphasis added). As
this statutory language makes plain, admitting a will to probate and granting
Letters ofAdministration most certainly require the exercise ofjudicial discretion.
Moreover, even if it were true that the action Petitioner took in these estates
was "ministerial," she was still clearly required to disqualify herself. In 2008,
while the Estate ofMildred Johansson was still open and Mr. Spargo was
representing Petitioner in two lawsuits, the Commission decided Matter of
Ambrecht, 2009 Ann Rep 60 (Commn on Jud Conduct, October 29, 2008). There,
as here, the judge argued that it was not improper for his personal attorney to
II It is telling that the heading of SCPA 1408 is "Probate not allowed unless court satisfied."
38
appear before him on a negotiated plea agreement because the 'judge's role with
respect to such pleas [was] 'almost ministerial.'" 2009 Ann Rep at 63.
The Commission squarely rejected that argument, holding that even ifthe judge's
argument about the nature ofhis involvement was correct,12 "it is manifestly
improper for a judge to sit on a case in which the judge's personal attorney
appears, regardless of the nature of the case." Id. (emphasis added).
Finally, as this Court recently stated, "A judge's perception ofthe nature or
seriousness of the subject matter of the litigation has no bearing on the duty to
recuse or disclose a relationship with a litigant or attorney when necessary to avoid
the appearance ofbias or favoritism." Matter ofGeorge, _ NY3d _ (2013), No.
249, slip op. at 7-8. Thus, the Commission properly held here that "the standards
for disqualification do not distinguish between 'ministerial' proceedings and
others, and provide no exception for uncontested or one-party matters" (R22).
4. At the very least, Petitioner should have disclosed her
relationship with Messrs. Spargo, Kelly and Cade
As the Commission noted, this Court has repeatedly cited the failure to
disclose as a factor in misconduct (R20n1). See Matter ofRoberts, 91 NY2d 93,
96 (1997) ("we note particularly the serious failure to inform a litigant of a
potential basis for recusal ... which evokes an impermissible appearance of
12 The Commission also rejected the judge's argument that accepting a negotiated plea was
"ministerial," finding that "convicting and sentencing a defendant indisputably requires the
exercise ofjudicial power and discretion." 2009 Ann Rep at 63.
39
impropriety")(citations omitted); Matter afYoung, 19 NY3d 621, 626 (2012)
("Petitioner neither disqualified himself nor disclosed his relationship to the
defendant or complaining witness"); Matter ofLa Bombard, 11 NY3d 294, 298
(2008) ("petitioner neither disqualified himself nor disclosed his relationship with
defendant's mother to all interested parties"); Matter ofFabrizio, 65 NY2d 275,
277 (1985) Gudge handled his dentist's case "without disclosing the relationship or
offering to disqualify himself,).13
Here, it is undisputed that in the Estate ofWilliam Wagoner, Estate of
Robert Porter, Estate ofEsther May Porter and the Estate ofMildred Johansson,
Petitioner failed to disclose both her close friendship with Mr. Spargo and the fact
that he waS contemporaneously representing her in personal lawsuits (R299-300;
R877-78, 885 [Exs 25, 26]). In Smith, Kelly, Redick and Tassarotti, Petitioner
failed to disclose her relationship with Mr. Kelly (R250"51, 288, 493-94, 615;
R874-76, 883-85 [Exs 25, 26]), notwithstanding that he had a leadership role in
both her 2007 and 2010 judicial campaigns (supra, pp 15-20). It also is undisputed
13 Remittal of disqualification (Rule 100.3 [F]) is not available where a party appears pro se (see
Adv Op 07-114/07-120; Adv Op 01-07) or where only one party appears before the judge. See
Adv Op 11-43. In a Surrogate's Court proceeding, execution of a waiver and consent
constitutes an appearance in a probate proceeding and subjects the signatory to the personal
jurisdiction of the court. SCPA 401(4); Matter ofDurchin, 217 AD2d 582 (2d Dept 1995). In
many ofthese estates there were multiple unrepresented parties who appeared by signing a
waiver and consent (R996-98, 1033-39, 1064-70, 1104-10, 1213 [Exs 29C, 30C, 31C, 32D,
33V]). As a result, remittal was not available.
40
(
that Petitioner failed in Gould to disclose her relationship with Mr. Cade (R877,
885 [Exs 25, 26]).
"By failing to disqualify herself, or even disclose the relationships,"
Petitioner failed to act in a manner that promotes public confidence in the integrity
and impartiality of the judiciary (R20).
B. Petitioner Campaigned for Supreme Court Justice in 2007
and Surrogate's Court in 2010. Matthew Kelly Had a Leadership
Role in and/or Served as Campaign Manager in Both Campaigns.
The Advisory Opinions Clearly Put Petitioner on Notice that She
Was Required to Recuse.
Petitioner concedes that she knew a judge must recuse herself in cases
involving the judge's campaign manager during the campaign and for a period of
two years thereafter (R471-72). The record clearly supports the Commission's
finding that Petitioner violated that rule with respect to Petitioner's 2010
campaign, when, at a time "Mr. Kelly was already playing a leadership role in [the]
campaign" Petitioner "signed a decree ... admitting the Tassarotti will to probate"
two days after a campaign fundraiser organized by Mr. Kelly (R23).
The Commission also properly rejected Petitioner's claim that her 2007 bid
for Supreme Court Justice ''wasn't a campaign" and that Matthew Kelly wasn't her
2007 campaign manager (R19, 23-24).
41
I. Petitioner had a 2007 campaign for Supreme Court Justice.
By any plausible "good faith" definition, whether using common parlance or
the strictest legal interpretation, Petitioner had a campaign for Supreme Court justice
in 2007. Petitioner commenced her campaign no later than June 19,2007, when she
"stood on the steps of the courthouse with a banner that said, 'Kate Doyle for
Supreme Court,' and [] announced that [she] was hoping to get a nomination for
supreme court"(R500-01). See Rule 100.0(A) ("A person becomes a candidate for
public office as soon as he or she makes a public announcement of candidacy or
authorizes solicitation or acceptance of contributions").
On July 18,2007, Petitioner signed a Candidate Committee Authorization in
which she swore that she was a "candidate" for Supreme Court Justice and
authorized the creation of a campaign committee with Mr. Brown as campaign
treasurer (R496-97; R777-78 [Ex 6A]).
Petitioner also held two campaign fundraisers (R451; R840-41, 852-53 [Exs
8, 14]), one of which she attended (R45 I). Her campaign raised almost $32,000 in
contributions from the public and expended over $15,000 for the purpose of
advertising and soliciting contributions for her campaign.14
14 Petitioner's campaign filed a 32 Day Pre-General financial disclosure report indicating that
the campaign received $28,917 in contributions and paid out $12,610 for campaign expenses
(R753 [Ex 6A]). The 11 Day Pre-General report indicates that the campaign raised an additional
$3,023 in contributions and spent an additional $2,523 (R757 [Ex 6A]).
42
to
It is telling that in her brief to this Court, Petitioner does not even attempt to
explain her "good faith" basis for her sworn testimony that her 2007 campaign
"wasn't a campaign" (R515). In any common understanding ofthe term, publicly
announcing that you are a candidate (R500-01), filing campaign committee
documents with the State Board of Elections (R733-838 [Ex 6A]) or holding a
public fundraising reception as a "Candidate for Supreme Court Justice" (R279-81,
398,451,842), would constitute a "campaign" for public office.15 Petitioner herself
referred to her "2007 campaign for Supreme Court" in her response to the
Commission's initial inquiry and advised that two months after she annoUnced her
candidacy, she "ceased campaigning" (R884).
Nor does Petitioner provide any citation in support ofher sworn testimony
that her campaign activities fell within the legal definition ofmerely "testing the
waters" (R445-47, 449).16 As a former election lawyer and a Democratic
committeewoman with many years of experience working on campaigns (R442-43),
15 Not surprisingly, in June 2007, the Albany Times Union reported that Petitioner "announced
her campaign" for a Supreme Court seat. See Robert Gavin, Censured Justice Plans Campaign
Bid, Albany Times Union, June 27, 2007, at D1.
16 Petitioner's vague suggestion that her activity would be considered "testing the waters" under
federal law (R449) is largely irrelevant, since Petitioner is required to abide by New York's
definition. Her suggestion is, in any event, incorrect. The regulations of the Federal Election
Commission explicitly provide that a "testing the waters" period ends when the candidate makes
statements that refer to her as a candidate for office. See 11 CFR §§ 100.72, 100.131. Thus, as
under New York's rules, Petitioner's "testing the waters" period ended when she publicly
announced her candidacy and filed documents with the State Board of Elections identifying
herself as a candidate for the office of Supreme Court Justice.
43
Petitioner must have known!? that her period of ''testing of the waters" - a period of
private, preliminary discussions with political leaders or officials about possible
candidacy - ceased when she publicly announced her campaign. See Adv Ops 00-
11,02-34. See also New York State Advisory Committee on Judicial Ethics,
Judicial Campaign Ethics Handbook, 2013 Ed., at pI, located at
http://www.nvcourts.govlreportsliudicialcampaignethicshndbk.pdf, last accessed on
February 6, 2014 (hereinafter "Campaign Handboo!C,).!8
In addition, Petitioner went far beyond "testing the waters" when she sought
public support for her candidacy. See Adv Op 02-34. Petitioner attended the
fundraiser her campaign held at the Crossgates Restaurant on August 14, 2007
(R451). The campaign printed 2,000 invitations for that fundraiser, a substantial
number of which were mailed to members of the public (RS05, 607-09; R845 [Ex
17 Even ifPetitioner were somehow unaware of these well-established principles, her ignorance
is no excuse. "Every candidate for judicial office has an obligation to be familiar with the
relevant ethical rules and to ensure that his or her campaign ... practices are consistent with these
standards." Matter ofMichels, 2012 Ann Rep 130, 137-38 (Commn on Jud Conduct, November
12,2011).
18 The 2007 edition of the Judicial Campaign Ethics Handbook contains a nearly identical
definition of"testing the waters" as is contained in the current edition. In relevant part, the 2007
Campaign Handbook reads:
2.1.1 Testing the Waters
Prior to becoming a candidate, a judge may meet privately with the head of a local political
committee, political party members and leaders, or may appear privately before a party
executive committee, at any time within or outside the "window period," to discuss the
possibility of becoming a candidate for another judicial or public office.
44
(
10]). The fundraiser was publicly advertised in the Albany Times Union (R451,
505; R842-44 [Ex 9]). There is simply no credible argument that this very public
fundraiser was not part of a political campaign. Indeed, ifPetitioner were not
running a campaign for judicial office at the time of the fundraiser, she would have
been prohibited by the Rules from attending it. See 2000 Ann Rep of the NYS
Comnm on Judicial Conduct at 34 (noting that "[w]hile the Advisory Opinions
permit a judge to have discussions with party leaders," prior to becoming a
candidate, the judge is "precluded from attending political gatherings" until she is a
candidate for office).19
Finally, the fact that Petitioner was unsuccessful in receiving her party's
nomination does not negate the fact that she was a candidate and had a campaign.
"The definition of 'candidate' does not in any way depend on obtaining a political
party's nomination or support" (emphasis in original). Campaign Handbook, at 2,
citing Rule 100.0(A). As the Commission found, Petitioner clearly had a 2007
campaign for Supreme Court Justice.
2. Mr. Kelly was Petitioner's campaign manager and/or played a
leadership role in her 2007 campaign for Supreme Court Justice.
The Commission was equally correct in rejecting Petitioner's attempts to
minimize Mr. Kelly's role in her 2007 campaign and finding that, in 2007, Mr.
19 The Commission's Annual Reports are available online at:
http://www.scjc.state.ny.uslPublications/AnnualReports.htm.
45
Kelly played a key leadership role in Petitioner's political campaign (R23). The
hearing evidence showed that Petitioner herself conveyed to her campaign
treasurer that Mr. Kelly was the "campaign manager" (RI92; R839 [Ex 7]). And
Mr. Kelly's leadership role was evident by the fact that he organized or played an
instrumental role in every aspect ofPetitioner's campaign committee activities,
including:
• Using his office address of 13 Columbia Circle, Albany, as the
mailing address for Petitioner's political campaign committee (R846-
51 [Exs 11, 12, 13]);
• Directing the bill for the campaign fundraiser at the Victory Cafe to be
sent directly to him (R6Il; R852-53 [Ex 14]);
• Forwarding invoices for all campaign committee's expenditures to the
campaign treasurer (R193-97; R840-53 [Exs 8, 9, 10, 11, 12, 13, 14]);
• Personally running Petitioner's campaign fundraiser at Crossgates
Restaurant (R279-80, 282, 498-99, 514, 587, 606, 608);
• Paying for and placing an advertisement in The Times Union for the
fundraiser (R280, 451, 505, 610; R751, 840-44, 875, 883 [Exs 6A, 8,
9,25,26]);
• Ordering 2,000 invitations (R280, 505, 606-07; R849, 883 [Exs 12,
26]);
• Organizing the mailing of the invitations for the fundraiser (R282,
451,505,609; R883 [Exs 10,26]);
• Ordering and reviewing 2,500 lawn signs (R5I2, 609; R846-48, 850-
51 [Exs 11, 13]);
46
I"
• Directing and supervising the campaign treasurer's pro rata refund of
campaign contributions (RI98, 611-12; R854-55, 858-60 [Exs 15,
18]);
• Signing and mailing cover letters, under the letterhead ofPetitioner's
political campaign committee, attaching refund checks to contributors
through October 2008 (R612-13; R854-60 [Exs 15, 16, 17, 18]);
• Approving the campaign treasurer's fee (R613; R861-62 [Ex 19]).
The Commission properly found, these "extensive activities" demonstrated that Mr.
Kelly held "a significant leadership role" in Petitioner's 2007 campaign (R23).
3. Mr. Kelly was Petitioner's 2010 campaign manager.
It is undisputed that Mr. Kelly was the campaign manager of Petitioner's
2010 campaign for re-election as Surrogate's Court judge (R453-54, 584-85; R883
[Exs 25, 26]; RI03 [FWC 'if 30]; R151 [Ans 'if 30]). Mr. Kelly was "involved in all
aspects of [Petitioner's] re-election campaign" (R883 [Ex 26]), and Petitioner's
website and campaign materials prominently advertised Mr. Kelly as the
campaign's one and only contact person (R863-66, 867-68, 871-72 [Exs 20, 21,
23]). He assumed that role prior to Petitioner's March 17,2010 fundraiser at the
Fort Orange Club (R287, 516; R863-66 [Ex 20]).
4. The Advisory Opinions available in 2007 clearly put
Petitioner on notice that she needed to disqualify
herself in matters brought by Mr. Kelly.
Contrary to her argument (Pet Br 18), the Advisory Opinions available in
2007 clearly put Petitioner on notice that she needed to recuse herself from
47
proceedings brought by Mr. Kelly, or at the very least, disclose the relationship.
Those opinions were not limited to cases where the attorney had the official title of
"c~mpaignmanager." See, e.g., Adv Op 04_10620 ("recusal is in order" where
attorney "holding a leadership position" appears during campaign); Adv Op 02-
108 Gudge must recuse when attorney who played active role as "campaign
manager" or "campaign coordinator" appears in her court).
Moreover, Advisory Opinions 01-07 and 03-64 specifically hold that where.
an attorney organizes a single fundraiser for a judicial candidate, the judge must
disqualify herself when the attorney appears in her court. See also Adv Op 09-245.
Petitioner concedes that, at the very least, she was aware that Mr. Kelly organized
the August 14,2007 campaign fundraiser at the Crossgates Restaurant (R449-51,
842). As a result, Petitioner was required to disqualify herself in matters involving
Mr. Kelly for the duration ofher campaign. According to Petitioner, her campaign
ended the third week of September 2007 (R88).
As Petitioner conceded, however, in August 2007, at a time while her
campaign for Supreme Court was still active, she signed an order granting the
petition ofMatthew Kelly for permission to invade the corpus of an inter vivos
trust for the benefit ofMaxcy Kelly (R478, 504,1371-74 [Ex 34F]). The date of
20 Advisory Op 04-106 was modified by Advisory Opinion 08-152 to the extent that the earlier
opinion suggests collecting petition signatures was active conduct requiring ajudge's recusal
when the attorney appeared in her court.
48
the order is August 28, 2007, (R1371-74 [Ex 34F]), just two weeks after the
Crossgates fundraiser.
In addition, Petitioner concedes that during this same period, "there were
ongoing proceedings before [her] in the Estate afEvelyn Redick"(R504), a
contested matter in which Matthew Kelly had recently testified as to the
competency of the testator (R1429-63).
At the time Mr. Kelly was organizing the Crossgates Restaurant fundraiser
for Petitioner's campaign, the guardian ad litem in Redick was considering filing
objections to probate of the will based on his assessment that "the testimony of Mr.
Kelly about his relationship and interactions with Ms. Redick stand in direct
conflict with the information" provided to him by others (R1464).
Petitioner did not recuse and never disclosed her relationship with Mr. Kelly
(R615).
POINT II
PETITIONER SHOULD BE REMOVED FROM OFFICE.
Petitioner should be removed from judicial office. Standing alone, her
failure to disqualifY herself, or even to disclose her disqualifYing relationships, in
multiple cases shows a persistent inability to follow well-established ethical rules
and creates the unavoidable appearance of impropriety.
49
The severity ofher misconduct is significantly aggravated by her prior
censure, which involved one ofthe same attorneys implicated in this proceeding,
and preceded the beginning of the misconduct here by only months.
Finally, Petitioner's hypertechnical rationalizations and her less-than-
forthright hearing testimony evince her complete failure to appreciate a judge's
continuing obligation to conform her conduct to ethical standards.
A. Standing Alone, Petitioner's Misconduct in Failing to Disqualify
Herself From Cases in Which Her Close Friend, Campaign
Manager and Personal Attorney Appeared, Warrants Her
Removal.
For her misconduct on this record alone, Petitioner should be removed from
office. Numerous judges who presided over matters involving attorneys and/or
parties with whom they had relationships have been removed. See, e.g., Matter of
Young, 19 NY3d at 626 Gudge engaged in "serious misconduct when he presided
over matters involving persons with whom he and his paramour had close
relationships"); Matter ofLaBombard, 11 NY3d 294, 298 (2008) Gudge presided
over cases involving members ofhis family and a former co-worker); Matter of
Intemann, 73 NY2d at 582 Gudge took judicial action in cases brought by an
attorney who was a close friend, business associate and personal attorney); Matter
ofConti, 70 NY2d at 418-19 Gudge dismissed traffic ticket issued to his friend and
personal attorney); Matter ofRobert, 89 NY2d at 747 Gudge presided over cases
50
involving close friends); Matter ofFabrizio, 65 NY2d at 276 Gudge, inter alia,
presided over case involving his dentist).
As already detailed herein, Petitioner violated these rules in multiple cases.
In or about 2008 and 2009, Petitioner failed to disqualify herself and took judicial
action in the Estate ofWilliam Wagoner, Estate ofRobert Porter, Estate ofEsther
May Porter and Estate ofMildred Johansson, without disclosing that Thomas J.
Spargo, the attorney representing the petitioners, was Petitioner's close personal
friend and was representing Petitioner in two lawsuits at the time of the estate
proceedings. See, supra, pp 8-14.
From in or about 2007 through 2011, Petitioner did not disqualify herself
from and took judicial action in four matters in which Mr. Kelly represented the
petitioners, without disclosing that Mr. Kelly played a leadership role and/or was
the campaign manager of her 2007 and 2010 campaigns for judicial office. See,
supra, pp 15-27. And in or about February 2008, Petitioner failed to disqualify
herself and took judicial action in the Estate ofAlexander Raymond Gould, without
disclosing that William J. Cade, who represented the decedent's mother, had
represented Petitioner within the preceding two years. See, supra, pp 27-29
Petitioner's failure in these multiple cases is all the more distressing given
her "hypertechnical" reading of then-existing ethical opinions. Cf Matter of
George, _ NY3d _ (2013), No. 249, slip op. at 12. Given the existing precedent,
51
Petitioner knew or should have known that the Rules required her disqualification,
even in Surrogate's Court and even in uncontested, non-adversarial proceedings.
In 1989, this Court removed a judge sitting in Surrogate's Court who, inter
alia, presided over matters brought by an attorney who was his close friend,
business associate and personal attorney. Matter ofIntemann, 73 NY2d 580,582
(1989).
In 1994, the Advisory Committee on Judicial Ethics opined that a Surrogate
must recuse where a party's attorney was the jUdge's campaign manager,
notwithstanding that ''the matters might be routine, non-contested or
administrative." Adv Op 94-12 (emphasis added). See also Adv Ops 94-05, 01-
06. And in 2007, six months after Petitioner was censured by the Commission, the
Advisory Committee found that a Surrogate was "disqualified from presiding in
contested and uncontested matters when the attorney who represents the judge's
adult child appears in the judge's court." Adv Op 07-128 (emphasis added).
Even assuming, arguendo, that Petitioner somehow found these clear
precedents to be "unclear" or "debatable," she has never adequately explained why
she failed to seek advice from the Advisory Committee on Judicial Ethics (R526).
"It is difficult to understand how any judge, .. could fail to recognize, even
without the guidance provided by the Advisory Opinions, that such a conflict
required prompt recusal or, at the very least, presented a significant issue that
52
warranted exploration. Even a telephone call to the Advisory Committee would
likely have provided the appropriate guidance." Matter ofAmbrecht, 2009 Ann
Rep at 63-64.
Taken in its entirety, the record in this case depicts a judge who, rather than
avoid impropriety, let alone even the appearance of impropriety, strained to
interpret ethical rules to justify conduct she had already decided to undertake.
Petitioner claimed that after she was censured by the Commission in February
2007, she began studiously reviewing Commission determinations and judicial
ethics opinions to avoid future ethical violations (R455-56, 493). But, as the
Commission found
[i]f, as [Petitioner] maintains, she analyzed the
applicable mandates and determined that her actions were
permissible, her conduct shows exceedingly poor
judgment and an inability to recognize impropriety.
(R2l-22).
Finally, Petitioner exacerbated her misconduct by failing even to disclose
her relationships with these attorneys. See Matter ofRoberts, 91 NY2d 93,96
(1997) ("we note particularly the serious failure to inform a litigant of a potential
basis for recusal ... which evokes an impermissible appearance of impropriety")
(citations omitted); see also Matter ofYoung, 19 NY3d at 626 ("Petitioner neither
disqualified himself nor disclosed his relationship to the defendant or complaining
witness"); Matter ofLa Bombard, 11 NY3d at 298 (2008) ("petitioner neither
53
disqualified himself nor disclosed his relationship with defendant's mother to all
interested parties"); Matter ofFabrizio, 65 NY2d at 277 (judge handled his
dentist's case "without disclosing the relationship or offering to disqualify
himself').
Petitioner committed serious misconduct by taking judicial action in
numerous matters brought by three attorneys with whom she had close
relationships. In each instance, Petitioner's failure to disqualify herself created
"the appearance of impropriety and the potential for [] conflict[s] of interest."
Matter ofIntemann, 73 NY2d at 582. Such conduct, standing alone, warrants her
removal.
B. Petitioner's Prior Censure Is an Aggravating Factor that Further
Warrants Her Removal.
In 2007, Petitioner was censured by the Commission for giving testimony
that was "inconsistent, misleading and evasive" concerning her role in the Thomas
Spargo legal defense fund trust. Matter ofDoyle, 2008 Ann Rep Ill, 112
(Commn on Jud Conduct, February 26, 2007).
Petitioner's prior censure "is a significant aggravating factor" (Matter of
George, _NY3d at ~(2013), No. 249, slip op. at 8,21 and further supports [a
21 Petitioner's suggestion that this Court is reluctant to remove a judge without "additional
aggravating factors" (Pet Br 22) is plainly wrong. This Court has not hesitated to remove judges
for even a single act of misconduct, see Matter ofHedges, 20 NY3d 677 (2013); Matter of
54
determination] that [Petitioner's] future retention of office is inconsistent with the
fair and proper administration ofjustice." Matter ofKuehnel, 49 NY2d 465,470
(1980). See also Matter ofHamel, 88 NY2d 317, 320 (1996).22
Indeed, the fact that Petitioner presided over matters where Mr. Spargo
represented a party, even after being censured by the Commission for her
testimony in the Spargo proceeding, underscores the depth of Petitioner's
insensitivity to judicial ethics. Having testified in that proceeding about her long
and close relationship with Mr. Spargo, which she concedes continues, Petitioner
should have been especially aware of the obvious appearance of impropriety in
presiding over any matter in which Mr. Spargo appeared. As this Court recently
held in Matter ofGeorge, _NY3d _ (2013), No. 249, slip op. at 10, "petitioner's
actions raise a substantial question concerning h[er] ability or willingness to
conform h[er] behavior to the requirements ofthe Rules Governing Judicial
Conduct."
Blackburne, 7 NY3d 213 (2006), even where there are significant mitigating factors. See Matter
o/Restaino,lO NY3d 577 (2008).
22 Nor is it true, as Petitioner claims (Pet Br 23-24), that a prior censure must be "related" to
constitute an aggravating factor. In Matter 0/Kuehnel, 49 NY2d 465, 470 (1980), this Court
removed a judge for a violent, off-the-bench, outburst. The Court found that a prior, uurelated
censure for granting favors in traffic cases was an additional factor warranting removal.
55
c. Petitioner's Sworn Hearing Testimony Was
"Evasive and Misleading."
Contrary to Petitioner's argument{Pet Br 19-20), the hearing record fully
supports the Commission's determination that
[i]n the face ofpersuasive evidence to the contrary,
[Petitioner] attempted to minimize Mr. Kelly's role in her
2007 campaign, insisted that he was not her campaign
manager, testified that she had little knowledge ofhis
extensive activities on her behalf, and even maintained
that her seven-week effort to seek the Supreme Court
nomination "wasn't a campaign" at all (though it included
two fundraisers, one of which she attended) since she
was only "testing the waters" and ended her effort before
the convention. While we give due deference to the
referee's finding that respondent was "a credible and
candid witness" ... we find that her evasive and
misleading hearing testimony, as in her prior disciplinary
proceeding, violated her obligation to be forthright and
candid.
(R23-24).
Unlike Matter afKiley, 74 NY2d 364 (1989), Petitioner's testimony does not
involve "inadvertent factual misstatements, testimonial inconsistencies or ... poor
judgment in responding to searching, unanticipated questions." Id. at 371. By the
time she testified at the hearing, Petitioner had been aware for several years that
her 2007 effort to become a Supreme Court Justice was an issue (R874-75, 883-85
[Exs 25, 26]). Petitioner had ample time to review her conduct and research the
relevant law. Petitioner certainly could have testified that while she previously
56
thought her 2007 campaign "wasn't a campaign," after reviewing the facts and
researching the relevant law and ethics opinions, she now realized she was wrong.
Instead, Petitioner's counsel introduced the topic on direct examination,
where Petitioner emphatically denied that her 2007 candidacy was a "campaign"
(R446-47) 23 and claimed that she was merely "testing the waters" (R447).24
Notwithstanding that she made a public announcement of her candidacy (R500-
01), attended a public fundraiser (R451), and raised campaign funds from members
ofthe public (R747-50 [Ex 6AD, Petitioner maintained that she was not
"campaigning with the public because the public is not in charge of picking the
candidate" (R447).
In making these specific assertions, which are contradicted by the record and
all the relevant law, see supra pp 42-45, 47-49, Petitioner echoes the testimonial
strategy that led to her prior censure by telling an "elaborate tale" that "strains
credulity." Matter o/Doyle, 2008 Ann Rep at 116. See also Matter o/Conti, 70
NY2d 416,417-18 (1987) (misconduct exacerbated by patently false explanations
for judge's actions); Matter o/Marshall, 8 NY3d 741 (2007).
23 The Commission notes that in her Verified Answer to the Formal Written Complaint,
Petitioner went so far as to deny that she was a "candidate for Supreme Court Justice" in 2007
(R102-03,151).
24 That she raised the issue herself clearly undermines any Kiley argument that the subject was
unanticipated.
57
Petitioner's reliance on the credibility determination ofthe Referee (pet Br
18) does not help her. The Referee's credibility finding is mystifYing at best, given
that it is completely at odds with his factual determination that Petitioner had a
"seven week campaign for Supreme Court in 2007" and that Mr. Kelly had a
"leadership position" in that campaign (R1857-58).
In any event, neither the Commission nor this Court are bound by the
credibility determinations ofthe Referee, particularly where, as here, the record
amply and independently refutes it. Matter ofMarshall, 8 NY3d at 743. Nor is it
true that there are "no reported cases where the Commission and the Referee's
determination on this issue of candor were so radically different" (Pet Br 19). In
Marshall, the COmhlission charged a judge with falsely testifYing during the
Commission's investigation. The Referee found that charge was not sustained.
Reviewing the hearing evidence de novo, both the Commission and this Court
rejected the Referee's credibility determination and sustained the charge.
Marshall, 8 NY3d at 743-44.
This Court should reach a similar conclusion about Petitioner's "evasive and
misleading" testimony here.
58
D. Petitioner's Failure to Recognize the Impropriety oCHer Conduct
Further Compels Removal.
Petitioner's failure to acknowledge any impropriety compounds her
misconduct and demonstrates a pervasive insensitivity to the high ethical standards
required for judicial office. See Matter a/Sims, 61 NY2d 349, 356 (1984).
Petitioner "continues to fail to comprehend the serious nature of [her]
conduct," which underscores her unfitness for judicial office. Matter a/Robert, 89
NY2d at 747. Indeed, as the Commission found, she maintained at the hearing that
she still sees no appeaqUlce~f impropriety in presiding over the Spargo, Kelly and
, -~ ,
Cade matters (R16; 538, 544)}5 Her "utter failure to recognize and admit
wrongdoing strongly suggests that, if [she] is allowed to continue on the bench, we
may expect more of the same." Matter a/Bauer, 3 NY3d 158, 165 (2004).
2S Nor is it entirely true, as Petitioner claims (Pet Br 25) that there is no allegation that any of
these attorneys received "special treatment." For example, the hearing evidence established, and
the Commission found, that on at least one occasion, contrary to the usual procedure, Petitioner
personally delivered one ofMr. Spargo's petitions to a court staffperson and told her to issue a
decree.
59
CONCLUSION
It is respectfully submitted that this Court should accept the Commission's
determination that Petitioner has engaged in judicial misconduct that renders her
unfit to hold judicial office, and that the appropriate sanction is removal.
Dated: February 10,2014
Albany, New York
Respectfully submitted,
ROBERT H. TEMBECKJIAN
Administrator and Counsel to the
Commission on Judicial Conduct
OfCounsel:
Cathleen S. Cenci, Esq.
Mary C. Farrington, Esq.
S. Peter Pedrotty, Esq.
60
By:
Edward Lindner
Deputy Administrator
Coming Tower, 23rd Floor
Empire State Plaza
Albany, New York 12223
(518) 453-4613
AFFIDA VIT OF SERVICE BY MAIL
STATE OF NEW YORK )
COUNTY OF ALBANY )
ss.:
COURTNEY FRENCH, being duly sworn. deposes and says: deponent
is not a party to the action. is over 18 years of age and resides at .
New York
On February 10.2014. deponent served three copies of the within
Brief for Respondent State Commission on Judicial Conduct upon William .I. Dreyer.
Esq .. the attorney for petitioner I-Ion. Cathryn M. Doyle in this action. at 75 Columbia
Street. Albany, New York 12210, for that purpose by depositing three copies of same
enclosed in a post-paid properly addressed wrapper, certified mail, return receipt
requested, in an oflkial depository under the exclusive care and custody of the United
States Postal Service within the Stale of New York.
Sworn to before me this
lotli day of February, 2014.