New York State Commission on Judicial Conduct

In the Matter of the Proceeding Pursuant to Section 44, in Relation to Jean Marshall, Justice

CONCURRING OPINION BY MR. FELDER

I concur that the record convincingly establishes respondent's egregious misbehavior, as alleged in Charges I and II. Indeed. although the prescribed standard of proof in Commission cases is a preponderance of the evidence (22 NYCRR §7000.6[i]), in my view the proof in this case far exceeds that standard.

The most compelling evidence against respondent, as I see it, comes from her own words. Both at the hearing before the referee and at the oral argument before the Commission, respondent' s statements were evasive, riddled with inconsistencies, and singularly unpersuasive. In attempting to explain her actions, she repeatedly showed a troubling misapprehension of the relevant issues, and her explanations only raised more questions about whether she understands the proper role of a judge.

For example, at the oral argument, respondent acknowledged that prior to these proceedings it had been her practice to grant adjournments upon the request of an attorney without notifying the other side (Oral argument. p. 40). When I asked her whether she still followed that practice, her responses revealed that, notwithstanding these proceedings, she has learned little about appropriate legal procedures:

MR. FELDER: Since all of this happened with what we're concerned here with today, do you still follow that same practice?

RESPONDENT: I do with attorneys and public defenders, DAs, but not with citizens, defendants.

MR. FELDER : But if —

RESPONDENT: If a defendant calls me I tell them they have to come to court.

MR. FELDER: Yes. but if a DA, if you grant the DA an adjournment, how does the defendant know then, if you're doing it ex parte?

RESPONDENT: They wouldn't know until they came to court.

JUDGE PETERS: If you grant the DA an adjournment, do you send a letter to the defendant or do you make the defendant show up anyway?

RESPONDENT: I make the defendant show up anyway.

JUDGE PETERS: Why not just send him a letter and say, "The DA asked for an adjournment, I granted it"? Why inconvenience them?

RESPONDENT: Well, since all this has started, and it's been going on three years now, I've been a lot more careful with talking to defendants on the phone.

JUDGE PETERS: Well, you can send them a letter, can't you?

RESPONDENT: Yes, I could send them one.

JUDGE PETERS: And then they don't have to drive all the way to court?

RESPONDENT: Right, but if it's an attorney, you would assume that the attorney would notify the client.

MR. FELDER: Well, if the attorney requested on behalf of the defendants do you notify the prosecutor?

RESPONDENT: No, not until he shows up in court.

MR. FELDER: He has to show also?

RESPONDENT: Yes.

(Oral argument, pp. 40-42)

Respondent's words reveal, even at this late date, a shaky grasp of the rules pertaining to ex parte communications. She clearly fails to understand that before granting any application for an adjournment, she generally should hear from the other side. Section 100.3(B)(6)(a) of the Rules provides that, with respect to ex parte communications as to scheduling, a judge should, "insofar as practical and appropriate, make[] provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allow[ ] an opportunity to respond."

Also telling was respondent's statement in her Decision dismissing the code violation cases (Comm. Ex. 20) indicating that one factor in the dismissal was her belief that the Town was selectively targeting certain defendants. Respondent reiterated that view both in her Answer ("[I]t has been only poor people who have received summonses") and at the oral argument (Ora1 argument, pp. 35-36). Asked why that view was relevant, respondent provided no clear response (Id.). The words in respondent's Decision speak for themselves: "Another problem I have with these so called violations is the fact that it seems to be pick and choose. When everybody is treated the same in this town, I may reconsider" (Comm. Ex. 20). Motivated by her personal disagreement with the enforcement of the law. she simply chose to dismiss the charges.

Respondent could offer no persuasive explanation for why the arrows and notations on her calendar for December 29th - in the identical format she used throughout the calendar to indicate adjournments — did not, as she insisted, actually signify an adjournment. Nor could she provide any convincing explanation for her use of white-out, on that page alone, to make a substantial alteration, or why she did not simply write the new entry she wished to make below those dates, on the bottom on that page, two thirds of which was blank. Cumulatively, respondent's hollow explanations convey a powerful statement about her lack of credibility.

In concluding that respondent was not credible, I am constrained to disregard the referee's report, which I find unreliable and inexplicable in this regard. While appearing to exonerate respondent from the charge of false testimony, he makes a factual finding that she testified falsely as to the adjournments (Referee's report, Finding 75). He finds that the charge of false testimony (in which she denied adjourning the cases) was not proved (Referee's report, pp. 6, 19), yet also finds that she did set adjourned dates (Referee's report, Findings 8, 21, 35, 49). In light of these inconsistencies, I have examined the entire record of this case with particular care.

Additionally, I note that Chief Judge Judith S. Kaye has focused on the local justice courts and has proposed certain reforms, including more training and supervision and other measures to improve the functioning of these courts. Respondent's conduct underscores the need for greater training and other reforms. As Judge Kaye has stated: "These courts must provide the same high standard of justice the public expects and deserves from any court in New York" ("Sweeping Reforms of New York's Local Justice Courts Unveiled," Press Release. New York State Unified Court System, 11/21/06).

I concur woth the majority that respondent's actions are inconsistent with the high standards of integrity and propriety required of all members of the judiciary.