=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 103
In the Matter of the Hon. J.
Marshall Ayres, a Justice of the
Conklin Town Court, Broome
County.
Hon. J. Marshall Ayres,
            Petitioner,
New York State Commission on
Judicial Conduct,
            Respondent.



         J. Marshall Ayres, petitioner pro se.
         Edward Lindner, for respondent.




PER CURIAM:
         Petitioner J. Marshall Ayres, a non-lawyer Justice of
the Conklin Town Court, Broome County, since 2009, commenced this
proceeding, pursuant to article VI, § 22 of the New York State
Constitution and § 44 of the Judiciary Law, to review a
determination of the New York State Commission on Judicial

                               - 1 -
                               - 2 -                         No. 103

Conduct (Commission) sustaining charges of misconduct and
removing him from office.    Upon our plenary review of the record
we sustain the Commission's findings and conclude that removal is
warranted.
         The Commission issued a Formal Written Complaint
containing two charges.   The first alleged that petitioner lent
the prestige of his judicial office to advance the private
interests of his daughter by attempting to influence the
disposition of a traffic ticket issued to her and, in the
process, was discourteous to the prosecutor on the case.
According to the evidence before the Commission, petitioner
relied on his status as a judge to personally request from a
court clerk and another Town Justice that his daughter's case be
transferred from the assigned judge.    The clerk did not comply
with the request, and the Town Justice refused, and further
rebuffed petitioner's attempts to discuss the merits of his
daughter's case.   Subsequently, petitioner attended his
daughter's pre-trial conference with the prosecutor and made
inappropriate reference to his judicial office, telling the
prosecutor that "if this ticket was in my courtroom, I'd dismiss
it," and that other judges he spoke with shared his view "that
this should be dismissed."   The prosecutor testified that she
felt "extreme pressure" to dismiss the ticket.   After the
conference, the prosecution moved to dismiss the ticket and the




                                - 2 -
                              - 3 -                        No. 103

court eventually granted the motion.1
           The second charge alleged that, in connection with
appeals from petitioner's restitution orders in People v Finch
(Conklin Town Court, Case No. 10020071), petitioner mailed to
Broome County Court eight letters, including five ex parte, that
contained argumentative and biased statements.   In these letters,
petitioner asserted that the appeal was meritless and that
defense counsel's arguments were "ludicrous" and "totally beyond
any rational thought process."    Petitioner also made biased,
discourteous, and undignified statements about the defendant and
defense counsel, including suggesting that defense counsel was
attempting to "pad [his] bill" at taxpayer expense.   Petitioner
himself concedes that at least one letter addressed County Court
with "snarky" language.
           County Court took the unusual step of responding to
petitioner with a letter in which it explained why his arguments
were misplaced, his conduct inappropriate, and his words and
actions ill-suited to his judicial post.    Even after receiving
this correspondence, petitioner continued to send letters to
County Court opining on the merits of the case and failed to
timely comply with deadlines for filing returns in the Finch
appeals.


     1
       In fact, the Judge on the case initially refused to accept
the prosecutor's motion to dismiss, since, as he testified at the
Commission hearing, he was worried that petitioner had exerted
inappropriate influence during the pre-trial conference.

                                 - 3 -
                                 - 4 -                      No. 103

            The Commission unanimously concluded that petitioner's
actions violated sections 100.1, 100.2 [A], 100.2 [B], 100.2 [C],
100.3 [B] [4], and 100.3 [B] [6] of the Rules Governing Judicial
Conduct.    As aggravating factors supporting removal the
Commission noted petitioner's insistence that his actions were
permissible as well as his persistent misconduct in the Finch
appeals.2
            The Commission properly identified the applicable
judicial standards of ethics.3    As we stated in Matter of Esworthy


     2
       While two commissioners wrote separately, both agreed that
petitioner committed misconduct and that removal from judicial
office was warranted.
     3
       We reject as without merit petitioner's varied objections
to the Commission's process. Contrary to his claims, the
Commission did not employ improper investigative techniques or
demand documents outside the scope of its authority, but instead
acted well within its broad powers to request and review records
(see Matter of New York State Commn. On Jud. Conduct v
Rubenstein, 23 NY3d 570 [2014]). We similarly find nothing
inappropriate in the Commission Deputy Administrator
participating at petitioner's hearing, or the Commission referee
advising petitioner of the possible negative inference to be
drawn from petitioner's failure to testify. Petitioner's
argument that he cannot be subject to the Commission's scrutiny
because he relied on the Office of Court Administration and the
Town and Village Courts Resource Center is unpersuasive because
the Resource Center made clear that a judge may not use a
judicial position to obtain special favors or outcomes, even if
attending a court appearance as a parent. In any case, as the
record establishes, petitioner did not seek help from the
Resource Center with respect to the charges at issue here, even
after he had been put on notice that he was acting
inappropriately. Lastly, the Commission's Formal Written
Complaint provided petitioner with adequate notice about the
disconcerting tone of his letters which the Complaint described
as containing "biased, discourteous and undignified statements

                                 - 4 -
                              - 5 -                          No. 103

(77 NY2d 280, 282 [1991]), a judge has a duty to act "in such a
manner as to inspire public confidence in the integrity,
fair-mindedness and impartiality of the judiciary."   The Rules
Governing Judicial Conduct expressly provide that a judge must
"act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary" and "avoid . . .
[even] the appearance of impropriety" (22 NYCRR 100.2, 100.2
[A]).   In particular, a judge shall not "lend the prestige of
judicial office to advance the private interests of . . . others"
(22 NYCRR 100.2 [C]).   As the Court has emphasized, "[f]ew
principles are more fundamental to the integrity, fair-mindedness
and impartiality of the judiciary than the requirement that
judges not preside over or otherwise intervene in judicial
matters involving relatives . . . .    The same is true of
intervention by a judge in proceedings involving family members
pending in another court . . ." (Matter of LaBombard, 11 NY3d
294, 297 [2008]).
          Similarly, it is a violation of a judge's solemn oath
to abandon the role of neutral decisionmaker or engage in ex
parte communications on the merits of a case.   As we have
explained, both actions are fundamentally incompatible with the
responsibilities of judicial office (see Matter of Blackburne, 7
NY3d 213, 221 [2006] [observing that, when "petitioner abandoned
her role as a neutral arbiter," she acted in a way "completely


about the defendant and his counsel."

                               - 5 -
                              - 6 -                         No. 103

incompatible with the proper role of an impartial judge"]; Matter
of George, 22 NY3d 323, 330 [2013] [observing that engaging in ex
parte communications about the merits of a case is "conduct . . .
antithetical to the role of a judge"]).   For this reason, the
Rules Governing Judicial Conduct state unequivocally that "[a]
judge shall not initiate . . . ex parte communications" (22 NYCRR
100.3 [B] [6]), and we have repeatedly stressed that any conduct
that creates or suggests the appearance of partiality is a
"misuse of [the] judicial office" (Matter of Young, 19 NY3d 621,
626 [2012]).   "[A] judge performing judicial duties must both act
and appear to act as an impartial arbiter serving the public
interest . . . . A judge who does not know this, and is not
capable of learning it, should not be on the bench" (Matter of
Cerbone, 2 NY3d 479, 485 [2004]).
         As to the proper disposition for judicial misconduct,
"[r]emoval is an extreme sanction and should be imposed only in
the event of truly egregious circumstances" (Matter of
Cunningham, 57 NY2d 270, 275 [1982]), and "should not be ordered
for conduct that amounts simply to poor judgment, or even
extremely poor judgment"   (id.; see also Matter of Kiley, 74 NY2d
364, 369, 370 [1989]).   Whether a judge's behavior crosses the
line of what constitutes "truly egregious" conduct is a
fact-specific inquiry because "[j]udicial misconduct cases are,
by their nature, sui generis" (Matter of Blackburne, 7 NY3d at
219-220 [2006]).   A guiding principle in our assessment is that


                               - 6 -
                              - 7 -                        No. 103

"the 'truly egregious' standard is measured with due regard to
the higher standard of conduct to which judges are held" (Matter
of Restaino, 10 NY3d 577, 590 [2008] [internal quotation marks
and citations omitted]).   When a judge intervenes in another
judge's courtroom, it compromises the court system as a whole.
Thus, "as a general rule, intervention in a proceeding in another
court should result in removal" (Matter of Edwards, 67 NY2d at
155).   The inability to recognize the seriousness of one's
misconduct and the failure to heed a prior warning are
significant aggravating factors, and can be grounds for removal
as well (see Matter of George, 22 NY3d 323, 331 [2013] [failure
to heed a prior warning as a ground for removal]; Matter of Hart,
7 NY3d 1, 7-8 [2006] [failure to recognize the seriousness of
misconduct as a ground for removal]; Matter of Robert, 89 NY2d
745, 747 [1997] [same]).
          Here, it was improper and a violation of petitioner's
ethical duty for him to use his judicial position to interfere in
the disposition of his daughter's traffic ticket.    It was further
improper for petitioner to tell the prosecutor that in his
opinion and that of his colleagues the matter should be
dismissed.   By these actions petitioner did more than act as
would any concerned parent, as he now maintains.    Instead, he
used his status to gain access to court personnel under
circumstances not available to the general public, and, in his
effort to persuade the prosecutor to drop the matter, gave his


                               - 7 -
                                - 8 -                        No. 103

unsolicited judicial opinion.    Furthermore, petitioner's
imperious and discourteous manner towards the prosecutor on the
case undermined "the integrity . . . of the judiciary."      Even
during the course of the Commission's proceedings petitioner
exhibited no insight into the impropriety of his conduct.      For
example, he used paternalistic and infantalizing terms, referring
to the prosecutor as "girl" and "kid," colloquialisms that were
disrespectful and inappropriate.
         Petitioner's actions during the Finch appeals,
including his several ex parte communications to County Court
advocating for dismissal of the matter and extolling the
correctness of his decisionmaking, were also highly improper (see
e.g. In re Murchison, 349 US 133, 137 [1955] [noting that a judge
should not have "the zeal of a prosecutor"]; Matter of Gumo, 2015
NYSCJC Annual Report 98; NY Jud. Adv. Op. 98-77 ["[A] judge
should not adopt the role of an advocate."]; 22 NYCRR 100.3 [B]
[6] [prohibiting ex parte communications]).   Additionally, the
letters disparaged County Court, defendant, and defense counsel,
which was also unacceptable (see 22 NYCRR 100.3 [B] [4] ["A judge
shall perform judicial duties without bias or prejudice against
or in favor of any person."]).    He persisted in this serious
misconduct even after County Court informed petitioner that his
comments were "troubling" and further instructed him as to the
appellate process and petitioner's proper role.
         Petitioner's misconduct is compounded by his failure to


                                 - 8 -
                              - 9 -                          No. 103

recognize these breaches of our ethical standards and the public
trust.   Before the Commission's referee, the Commission itself,
and this Court he continued to minimize the import of his
actions.   Rather than acknowledge his obligations and the
implications of his conduct, petitioner asserts that he should
not be removed because he acted as a father in his daughter's
case, not as a judge, and because his communications in the Finch
appeals were in good faith and substantially correct.   He focuses
on what he perceives as a misunderstanding, stating that "[t]his
experience has taught [him] how easily words and actions can be
misinterpreted and to avoid any occasion or situation that could
be misconstrued."   Petitioner fails to accept that this is not a
question of a misunderstanding.   As a judge he had but one
choice: to refrain from "lend[ing] the prestige of judicial
office to advance the private interests of . . . others" (22
NYCRR 100.2 [C]), which included any communication on behalf of
his daughter which could be "perceived as one backed by the power
and prestige of judicial office" (Matter of Lonschein, 50 NY2d
569, 572 [1980]), such as his opinion that the ticket should be
dismissed.   Judges are held to "standards of conduct more
stringent than those acceptable for others" (Matter of Kuehnel,
49 NY2d 465, 469 [1980]), and "'paternal instincts' do not
justify a departure from the standards expected of the judiciary"
(Matter of Edwards, 67 NY2D at 155, citing Matter of Lonschein,
50 NY2D at 572).


                               - 9 -
                                   - 10 -                           No. 103

            Petitioner similarly fails to appreciate that he acted
inappropriately during the course of the Finch appeals.             He
continues to minimize the import of his actions, claiming that
the Commission took his comments out of context and that judges
must be allowed "to express their individuality."           Petitioner
misses the essential point: that, as a judge, his conduct had to
both be and appear to be impartial.          This is a particularly high
standard (see Matter of Restaino, 10 NY3d at 590; Matter of
Kuehnel, 49 NY2d at 469).     The conduct with which he is charged
-- and which he does not deny -- fails to meet it.
            His response to the charges and the Commission's
findings, his continued assertion that he acted lawfully, and his
failure to appreciate his ethical breaches "strongly suggest[]
that, if [petitioner] is allowed to continue on the bench, we may
expect more of the same" (Matter of Bauer, 3 NY3d 158, 165
[2005]).    Accordingly, the determined sanction of removal should
be accepted, without costs, and J. Marshall Ayres removed from
the office of Justice of the Conklin Town Court, Broome County.
*   *   *     *   *   *   *    *     *      *   *   *   *   *   *        *   *
Determined sanction accepted, without costs, and J. Marshall
Ayres is removed from the office of Justice of the Conklin Town
Court, Broome County. Opinion Per Curiam. Chief Judge DiFiore
and Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman
concur.

Decided October 17, 2017




                                   - 10 -
