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TO
ALL:
November 21, 2005
There was a conference
today between my attorney, the prosecutor and the judge regarding
the retrial of the 1998 harassment charges against me brought by
Warren County Sheriff Larry Cleveland on behalf of disgruntled
zoning violators Eleanor and Donald Lambert and their
co-conspirator, Jay Becker, aided and abetted by former Chester
judge Wendell Ross, former Chester judge Ronald Robert and former
state trooper Charles Redmond. As you know, the convictions from
2000 were reversed and vacated in April because I had been denied my
constitutional rights, after I had already served jail time but
Warren County Court Judge John Hall refused to dismiss the charges
as requested by special prosecutor Mary Moule, insteading ordering
that they be retried. Hall then removed Moule from the case when she
refused to do so, saying that the charges were unconstitutional and
legally insufficient. The judge then appointed his tenant that is
maintaining a law practice on property owned by the judge where the
judge formerly maintained his law practice.
I have just spoken with my
attorney. THE CHARGES HAVE BEEN DISMISSED BY AGREEMENT OF ALL
PARTIES and the dismissal will be finalized by written order. The
new special prosecutor said that the actions complained of are
totally protected by the First Amendment and he refuses to
prosecute. Additionally, due to the failure and refusal to
prosecute, my speedy trial rights have again been violated. We can
now file the civil rights litigation.
My father died knowing that
the convictions had been reversed. He stood beside me all the way.
We were right, Dad---they were the ones in the wrong. What a price
we paid.
Activists
Slam NY Judges
MensNewsDaily
August 16, 2005
By Tom Kovach
In a special report, The Empire Journal describes the vindication of
a group of New York activists.
The New York State (NYS) Oaths Project
together with the
Empire Journal, the
NYS Tyranny Response Team (NYSTRT) and the
Constitution Party of New York have been
successful in forcing the State Legislature and the Office of Court
Administration to
admit that judges and justices across the
state were in gross non-compliance of the law. (NOTE:
In the interest of full disclosure, this author is an official with
the
Constitution Party of Tennessee; but, was unaware
of the Oaths Project until receipt of the recent news bulletin.)
The NYS Legislature has
vindicated the work of the Oaths Project by passing Chapter 406 of
the NYS Laws of 2004. Governor George Pataki signed Chapter 406 into
law on 17 August 2004. This followed a
""Rally to Rein in the Judges""
in June of 2004. Chapter 406 has an effect on several NYS Laws,
including Article 2, Section 10, of the NYS Public Officers Law.
That law requires every Public Officer (which includes judges) in
the state to take an oath of office ""before he shall be entitled to
enter upon the discharge of any of his official duties"". The text
of the oath is specified in Article 13 of the NYS Constitution. As
the anniversary of the passage of this law approaches, NYSTRT wants
to encourage citizens across New York, and across America to keep
working to
force courts to obey the laws that they
apply to others.
The Oaths Project
discovered that judges across the State of New York were in office
without having filed proof of or, in some cases, even taken their
oath of office. Thus, they were occupying their office in violation
of the law. In cases involving criminal charges, this has raised
questions as to whether the conviction of an accused standing before
an illegal court can be upheld. These are no mere technicalities. If
a court will not obey the law, then why should any citizen? (This
author has previously commented about
a judge that refused to obey the same rules
that he imposed upon others.) America was founded
upon the rule of law, not the rule of men.
It remains to be seen how
many judges will be removed from office as a result of the work of
the Oaths Project. They claim that 90% of the state’’s judges are in
office illegally. They delivered a 400-page report to NYS Attorney
General Eliot Spitzer, who is ultimately responsible for enforcing
the law.
In the process and
aftermath of a bitter divorce proceeding, this author has appeared
pro-se for over ten years. My court activities helped to
force open hearings in Family Court across NY State to prevent
judges from making whimsical rulings in secret. (This applies across
America, according to the US Supreme Court ruling that I cited in my
motion. Compare that to the myth that most people believe reinforced
by hokey TV programs like "Judging Amy" that all Family Court
proceedings are supposed to be held in secret.) In the wake
of a 1996 hearing, I filed a complaint with the NYS Commission on
Judicial Conduct regarding a judge that was drunk on the bench
during the hearing. (Among other things, he was trying to read
papers upside down, but did not realize that they were upside down.)
I have gotten my ex-wife’’s lawyer sanctioned twice. He appealed
twice. He lost …… twice. (Yet,
the last time I checked, he was still employed to teach college
courses to prospective paralegals. His name is James
A. Mack, and
you can complain about him by contacting
the Vice-President for Academic Affairs.) My cases
have been successful at the Appellate Division New York’’s
second-highest court three out of four times. So, although it is
difficult, it is not impossible for
private citizens to force the judicial
system to be accountable.
MensNewsDaily.com will
continue to monitor this situation, and report on any future
progress in removing illegal judges from office.
Tom Kovach
New Release
August 7, 2004
For More Information
877-878-5902
Catena Appears to be Blocking
Motion To Vacate Harassment Convictions
Sixteen judges---four prosecutors-- 22 charges---seven
years. Two more judges have disqualified themselves from
the case of Warren County publisher June Maxam and acting
Warren County Court judge Felix Catena has finally
admitted he has no jurisdiction----but only in an apparent
attempt to block the publisher's motion to vacate the
unjust and fraudulent convictions in the seven-year old
harassment case.
One needs a program to keep track of the developments in
this convoluted miscarriage of justice and abuse of power
being perpetuated by Warren County and its sheriff, Larry
Cleveland, totally at the cost of the taxpayers. There are
now cases pending at the federal, county and town
levels----all stemming from 1998 and the complaint of
disgruntled zoning violator Eleanor Lambert of
Chestertown, still holding a grudge from the publisher's
1985 newspaper account of Lamebert's zoning matter. Lake
George town justices Michael Stafford and James Corkland
told Catena in writing in late July they were
disqualifying themselves in three pending charges from
2000 from three separate incidents in Chestertown in which
Maxam had been charged with reckless endangerment,
resisting arrest and obstruction of governmental
administration.
That brings the total of judges who have disqualified
themselves, retired or been removed from the publisher's
case to 16. Those cases have not yet been assigned to
another court. And, in the matter of the publisher's
motion filed June 28 to vacate the harassment convictions
from the December, 2000, trial in Queensbury Town Court
before Michael Muller, Catena has refused to assign a
judge to hear the motion, saying he has no jurisdiction.
Criminal Procedure Law requires that the motion to vacate,
known as a 440 motion which is based on collateral actions
outside the trial itself, be heard and decided on by the
trial justice.
But in this situation, trial justice Michael Muller has
disqualified himself and is reportedly under investigation
by the NYS Commission on Judicial Conduct for his actions
in the case which means another justice would have to be
assigned. In an unusual move, instead of Muller notifying
Catena of the situation, the other Queensbury town justice
Robert McNally has inserted himself into the case albeit
having no jurisdiction to do so as he too has already
removed himself from any matter pertaining to Maxam.
Catena told McNally in writing on July 9 that due to his
lack of jurisdiction, McNally had to ask the district
administrative judge, state Supreme Court Vito Caruso, to
assign the matter. To date, apparently McNally has not
done so which in essence denies Maxam's constitutional
right to due process and denies her a fair review of the
multiple constitutional issues involved, some of which
dictate automatic reversal of the convictions. Maxam says
Catena has no jurisdiction in any aspect of the cases
because Catena has never filed his certificate of election
and vacated his office as a matter of law by failing to
comply with state law in regard to the filing of his oath,
and she has raised the issue of Catena's jurisdiction in
the 440 motion.
While Catena now says he has no jurisdiction to assign a
judge to hear the 440 motion, Maxam says he had no
jurisdiction to assign Tarantino to a March reconstruction
hearing on the trial transcripts after Muller recused
himself. Tarantino refused to allow an audiotape of the
trial proceedings to be made part of the record which
proved Harvey's transcripts false and ruled that Harvey's
transcripts, albeit provably inaccurate, would constitute
the record on appeal. While Maxam has provided proof
including a report from a forensics investigator that the
transcripts from the Queensbury trial are falsified,
Catena has ruled that she cannot raise the issue in her
direct appeal of the judgment. However, the law provides
that the issue can be raised in the 440 motion which Maxam
has now done.
Procedure would dictate that a ruling first be issued on
the 440 and if it is denied, Maxam could then join that
denial with her direct appeal which has now been pending
since 2000, due largely to Harvey's intentional delay in
providing the transcripts. Holly Santspree, the court
stenographer for the reconstruction hearing, has now
provided that transcript and Maxam has filed a
supplemental affidavit to the motion to vacate to include
the issue of Harvey's falsified transcripts, including a
copy of an audiotape of Nov. 30, 2000, trial proceedings,
the forensics report certifying that the audiotape is
unedited and clean, and a comparison of a transcript of
the audiotape with the transcript that trial court
stenographer Jayme Harvey has certified to be true.
The comparison shows the alterations and omissions of the
Harvey tape in red and Maxam says the judgment must be
reversed due to fraud on the court. In the three pending
charges, Stafford had claimed those cases and had
scheduled an appearance date of Aug. 19 but Maxam filed an
opposition, citing numerous conflicts of interest
including the fact that Stafford is the law partner of
Robert McNally in Stafford, McNally and Carr. In addition,
the wife of the former assistant district attorney
involved in the case at the time Maxam was arrested, John
P.M. Wappett, is employed by the law firm. McNally, who
claims to be Queensbury town justice although having
vacated the office by operation of law for failing to file
his oath and bond, has already disqualified himself in any
matter concerning Maxam, citing conflicts of interest and
a prejudice.
He is the former defense attorney for Warren County
Sheriff Larry Cleveland and Warren County Sheriff's
Department as well as several department officers in a
federal civil rights action brought by Maxam and a
co-plaintiff, retired patrol officer Kathleen Dudley. Over
the strenuous objections of Maxam, in June Catena had
transferred three pending charges from 2000 from Glens
Falls to Lake George Town Court after then special
prosecutor Gary C. Hobbs had filed his sixth transfer
motion in the case. The charges were brought by the Warren
County Sheriff's Department in 2000 in regard to three
separate incidents occurring on Maxam's private property
in Chestertown.
Over the objections of the offense, Hobbs has repeatedly
tried to move the charges from Chestertown by the
prohibited practice of judge shopping. After he
specifically requested that the charges be moved to
Queensbury, both justices then disqualified themselves.
Hobbs next specifically requested the charges be moved to
Glens Falls City Court. Former city court justice David B.
Krogmann sat on the charges for nearly four months taking
no action until becoming state Supreme Court justice Jan.
1. Richard Tarantino then disqualified himself in May when
Maxam filed suit challenging his jurisdiction and Hobbs
specifically requested the charges be transferred to Lake
George Court, saying that he had discussed the matter ex
parte with the court clerk and they had decided there were
no conflicts in the court. But Maxam disagreed, citing
numerous conflicts in Lake George as well as challenging
Hobbs' plan to proceed as a prosecutor in the charges
while acting as Glens Falls city court justice.
Catena agreed that Hobbs was legally prohibited from being
a prosecutor and judge in the same county at the same time
and removed Hobbs as the prosecutor. Catena then appointed
Mary Moule as special district attorney. A motion for the
dismissal of the three charges was filed by Maxam in March
on grounds that her constitutional right to a speedy trial
has been violated. She also says that the charges are
constitutionally prohibited as the sheriff's department
committed Fourth Amendment violations in all three
incidents making all arrests unlawful. Although the law
requires that a ruling be made on all motions within 60
days of the final submissions, there has been no ruling
yet on Maxam's motion. Maxam had tried to file harassment
complaints against Lambert and Friends Lake resident Jay
Becker from May to August, 1998 but Cleveland and the
sheriff's department refused to allow her to do so.
Although the police refused to allow Maxam to file
verified complaints, they engaged Lambert in an entrapment
scheme to arrest Maxam. Although state law states that the
court cannot refuse to allow a person to file a complaint,
Maxam was denied the constitutional right to do so by the
Chester and Horicon courts.
After she filed the complaint directly with the court on
the advice of her attorney, Cleveland quickly claimed the
complaints were false without ever interviewing Maxam,
prosecuting her on felony charges for alleged
discrepancies in times and dates. When her court appointed
attorney failed to present any defense on her behalf,
Maxam was convicted and has since served two nine month
terms of incarceration concurrently. She was acquitted of
the false complaint filed against her by Jay Becker when
it was shown that Becker had lied under oath but no
perjury charges were brought against him. Due to the
multiple constitutional violations including the
ineffective assistance of counsel, suborning of perjury of
prosecution witnesses by Hobbs, the submission of false
written statements by prosecution witnesses, the
withholding of evidence and evidence tampering in the
case, she has now filed in federal court against Cleveland
to overturn those convictions.
News Release
July 29, 2004
For More Information
877-878-5902
No Legal Court System in Livingston, Seneca Counties
Even though the state's Office of Court Administration
issued memorandums in June and December, 2003,
telling all town and village justices in the state that
they had to file their oath of office and bond in the
county clerk's office or else they would vacate their
office, the NYS Oaths Project has learned that there is
still massive non-compliance in the state's court system.
According to
the Oaths Project survey, now extended into the eight
counties comprising the 7th Judicial District, there is no
legal justice court system operating in Livingston
and Seneca Counties. In fact, of
the 48 of the state's 62 counties surveyed, the Oaths
Project has determined that statewide there is
virtually no justice court system operating legally in
that members of the state's judiciary haven't complied
with the laws themselves and have engaged in a gross
violation of the public trust.
Thus far, neither the OCA, Attorney General Eliot Spitzer or Gov.
George Pataki have taken steps to ensure that the state's
judiciary comply with the laws themselves while sitting in
judgment of others.
After already
delaying nearly 30 days to respond to a Freedom of
Information Law (FOIL) request, Monroe County officials
have now stated they need another 45 business days (9
weeks) to tell Oaths Project coordinator June Maxam
whether or not they will approve or deny her request for
copies of the oaths and bonds of judges which may be on
file in the Monroe county clerk's office.
Steuben County officials have taken the position that the county
clerk's office and the public records stored there are not
subject to the Freedom of Information Law and therefore
have refused to tell the public if the county's town and
village justices have complied with the law and are
legally in office.
According to Christine Lotz, Seneca County clerk, there
are no bonds on file in her office for any of the judges
in the county including Dennis Bender, combined county
court, family court and surrogates court judge.
Judiciary Law 184 explicitly states that in the case of where
a county court judge also serves as a surrogates court
judge, he cannot perform the duties of the office nor
collect compensation until and unless he files an
undertaking/bond in the county clerk's office.
State courts have held that actions taken by such judges as Bender
in the absence of the filed undertaking are null and void.
According to information provided by Ms. Lotz, only two
town justices in the county have timely filed their oaths
of office----Kenneth Dean of Fayette and Kathleen Greule
of Romulus, both of whom began their current term of
office on Jan. 1
Neither Dean or Greule have filed their bond in the county clerk's
office as required. Both New York's
Association of Towns and the Office of Court
Administration have issued memorandums concurring with the
position of the NYS Oaths Project that pursuant to Public
Officers Law 30 if a public
officer fails to file his oath and/or bond within 30 days
of the commencement of their term, they have vacated the
office by operation of law, in essence refusing to serve.
The Uniform Justice Court Act requires that a town and village
justice, as well as their court clerks, must file their
original oath and bond in the county clerk's office with
copies of their oath filed with their municipal clerk
(town or village clerk) and the Office of Court
Administration.
Individuals who are acting as town justices in Seneca County but
who have vacated the office as a matter of law for
according to information provided by the county clerk's
office are Elizabeth Raymond, Covert; Bruce Laird and
Ernest Brownell, Junius; Winifred Jones and William Wech,
Lodi; Wayne Ewing and Robert Corning Sr., Ovid; R.E.
McConnell, Seneca Falls; Larry Mills and Kathleen Jans-Duffy,
Tyre; Frank Case, Varick; and Paul Bates and Michael
Geary, Waterloo.
In Livingston County, county administrator Dominic Mazza indicated
that no bonds were on file for either of the county
judges, Ronald Cicoria or Gerald Alonzo, both of whom
began their 10 year terms in 1996.
Only Michael Torregiano of the Town of Avon has filed both his oath
of office and a bond in the Livingston county clerk's
office and appears to be the only town justice qualified
in Livingston County to perform the duties of town
justice.
The records indicate that the other Avon town justice, Ellen Coyne,
has not filed.
Nine other town justices who began their four year terms of office
in January have filed their oath in the Livingston county
clerk's office according to Mazza but have not filed their
bond as required thus they too have vacated the office
effective Jan. 31 and have no legal authority to either
perform the duties of the office or collect compensation
and benefits for doing so.
The nine justices are Gerald Barker, Conesus; Carl Benware,
Groveland; William Kelly, Leicester; Walter Tripp, Mt.
Morris; David Werth, North Dansville; Gerald Hotchkiss,
Nunda; Donald Haywood, Springwater; and Eugene Moffat and
Wayne McMaster, West Sparta.
There are no oaths of office or bonds on file for the town justices
in Ossian, Geneseo, York, Sparta, Livonia, Caledonia,
Lima, Dansville The NYS Oaths Project will
next survey the large 8th Judicial District which includes
the counties of Allegany, Cattaraugus, Chautauqua, Erie,
Genesee, Niagara, Orleans and Wyoming including city
courts in Batavia, Buffalo, Dunkirk, Jamestown,
Lackawanna, Lockport, Niagara Falls, North Tonawanda,
Olean, Salmanca and Tonawanda.
Persons wishing to donate to the NYS Oaths Project to help defray
expenses may send checks or money orders payable to The
Empire Journal, Box 408, Chestertown, NY 12817 or contact
877-878-5902 for more information.
Glens Falls Judge Recuses
Self after Oaths
Coordinator
Sues Him for
Lack of Jurisdiction
Special Prosecutor in Case Appointed Judge
NEWS RELEASE 5/6/04
For More Information
Call 877-878-5902
NYS OATHS PROJECT
In a bizarre set of
circumstances, Glens Falls city court justice Richard
Tarantino has recused himself in the criminal charges
against June Maxam, coordinator of the NYS Oaths Project,
two days after she named him as a respondent in an action
in state Supreme Court and less than a week after
Tarantino swore in Gary Hobbs, special prosecutor in the
Maxam case, as the new part-time justice in Glens Falls
City Court.
Tarantino and acting Warren County Court
Judge Felix Catena of Montgomery County have been named as
respondents in a special proceeding brought by Maxam in
Warren County Supreme Court known as a writ of
prohibition.
Tarantino and Catena were both served
Monday with a petition seeking to enjoin and prohibit both
of them from any further proceedings in the Maxam cases
due to their lack of jurisdiction.
The petition, which also seeks a writ of
mandamus to compel the respondents to comply with the
state and federal Constitutions as well as state law, also
seeks certiorari in the reconstruction hearing held March
18 by Tarantino in an issue dealing with alleged falsified
transcripts. An order is requested for a rehearing in the
matter in addition to ordering court stenographer Jayme
Harvey to turn over to Maxam and her counsel the original
computer discs and notes from the proceedings in question
which were held in Queensbury Court in 2000 when Maxam was
tried on harassment charges from 1998 from incidents
allegedly occurring in the Town of Chester.
The suit also seeks to void all
decisions and orders in the Maxam cases by Catena and
Tarantino since they assumed jurisdiction.
The lawsuit naming the two judges was
served just days after Gary Hobbs, who has acted as a
special prosecutor against Maxam since 1998 was named by
Glens Falls mayor Robert Regan to fill the vacancy of
part-time justice in Glens Falls City Court.
The post became vacant when the former
full-time city court justice David B. Krogmann was elected
as justice of the Warren County Supreme Court and took
office Jan. 1.
Tarantino, who had claimed to be the
part-time justice, assumed the full-time position leaving
the part-time post open.
Republican Hobbs had applied for the
position in addition to Daniel Martindale, a Democrat; and
defense attorney Robert E. Kelly. Regan has been months in
making the appointment.
Regan ’’s
wife, Amy Bartlett, is the daughter of GOP magnate Richard
Bartlett, a prinicipal in the law firm of which Hobbs was
an associate, Bartlett, Pontiff, Stewart and Rhodes before
he formed his own firm.
Amy Bartlett is also the deputy Warren
County attorney, whose office approves the vouchers for
Hobbs as special district attorney in the Maxam case which
has cost taxpayers over $150,000 to date.
Maxam is appealing harassment
convictions from the Queensbury town court following a
trial in December 2000 from charges which originated in
the Town of Chester during 1998 following a complaint from
Donald and Eleanor Lambert and later Jay Becker.
Maxam has filed complaints with the
Warren County District Attorney ’’s
office and other agencies concerning the 2000 trial
regarding alleged jury tampering in the case by Becker in
addition to evidence tampering by members of the Warren
County Sheriff’’s Department.
The Office of the
State Comptroller and New York State Commission on
Judicial Conduct are also reportedly investigating the
case and Queensbury town justice Michael Muller after
Krogmann announced in December that Maxam ’’s
$5,000 cash bail in the Queensbury appeal was missing and
Queensbury Court had not turned it over to the Glens Falls
court as required.
The money was finally remitted to the
Glens Falls Court in January.
Krogmann had ordered Maxam to surrender
to the court for incarceration on Dec. 31 after Catena had
revoked her stay in the appeal, saying that Queensbury
town justice Michael Muller had acted outside his
jurisdiction in granting the stay and setting the bail.
But now Maxam says that Catena had no
jurisdiction to act in any manner in the Maxam case as he
never filed his certificate of election to the position of
county court judge and therefore, by law, has no title to
the office and cannot perform the duties as he has never
qualified for the office.
Maxam had been unable to file her appeal
in the Queensbury case due to the stenographer failing to
provide transcripts of court proceedings for some two
years, in defiance of three court orders.
When the missing transcripts were
finally produced in April, 2003, Maxam immediately
challenged them as being falsified.
To complicate matters, there are still
three separate charges from three separate incidents
pending against Maxam from 2000, charges which had never
been adjudicated and are now four years old.
A motion for dismissal of those charges
on grounds of violation of speedy trial rights and in the
interest of justice for violations of other constitutional
rights and alleged misconduct on the part of the police
and special prosecutor was pending before Tarantino at the
time of his recusal having been submitted by Maxam and her
counsel, Theresa Suozzi, in mid-March.
Catena was assigned to all matters
concerning Maxam in August, 2003. Although four previous
transfer motions made by Hobbs had been denied, as soon as
Catena was assigned, Hobbs submitted his fifth transfer
motion, specifically requesting that the matters be
transferred to Glens Falls and Catena immediately granted
it over the vehement objections of the defense on grounds
of egregious and long-existing conflicts of interest
between Maxam, Krogmann and Tarantino.
Although the three matters from 2000
have been pending in Glens Falls Court since August, 2003,
no action has been taken except for Tarantino to
reportedly advise defense counsel Suozzi to tell Maxam to
plead guilty because she allegedly couldn ’’t
win at trial as it would be her word against the
sheriff’’s department.
Maxam has learned that neither Catena or
Tarantino have complied with state law in regard to the
filing of their oaths of office and that both have vacated
their offices by operation of law.
According to Glens Falls City Clerk,
neither Krogmann nor Tarantino filed their oaths or bonds
in the city clerk ’’s
office as required by either state law or the Glens Falls
city charter. State law says that these individuals cannot
handle money for bail, fines or fees unless and until an
undertaking has been filed. Maxam says that in the absence
of an undertaking for either Krogmann or Tarantino, Glens
Falls City Court has no legal authority to hold her
$10,000 bail.
Regan had
allegedly attempted to impede Maxam ’’s
investigation into that matter, refusing her Freedom of
Information request for copies of the sections of the
Glens Falls Code and City Charter dealing with public
officers, saying that a copy of the charter was on file at
the Crandall Library for public review.
In addition to challenging the personal
jurisdiction of Catena and Tarantino, Maxam maintains that
to transfer the four year old cases to Glens Falls would
be a violation of her Sixth Amendment right to a local
jury and that Glens Falls lacks subject matter
jurisdiction.
She has had a request pending before the
Chester Town Board pursuant to the Uniform Justice Court
Act since August, 2003, for a judge to be assigned to the
Chester Town Court to resolve the four year old cases.
However, town supervisor Fred Monroe and the Chester Town
Board have to date ignored the request and Monroe has
refused to respond to Maxam ’’s
inquiries about the matter, in essence denying additional
constitutional rights.
In addition to the jurisdictional
challenges, Maxam says that both Catena and Tarantino had
demonstrated extreme bias and prejudice towards her,
allegedly retaliating against her for her role and actions
as coordinator of the NYS Oaths Project.
Tarantino, Krogmann, Hobbs and Catena
are among public officers named in pending litigation
regarding the Oaths Project, now in the Appellate Division
of state Supreme Court. Catena has called the Oaths
Project
""a sham"" and
despite his exhibited bias, has steadfastly refused to
recuse himself, even in the face of acriminal complaint
filed against him by Maxam for allegedly filing a false
written instrument with the state pertaining to her case.
Maxam and her
attorney had filed a motion to move the cases out of Glens
Falls Court in September, 2003, which Catena ignored. When
he filed his quarterly report with the state Office of
Court Administration for the last quarter of 2003, he
falsely told the state he had no motions pending before
him for more than 60 days although Maxam’’s
motion was by then pending over 100 days.
After he learned
of the criminal complaint Maxam had filed against him with
the Montgomery County District Attorney ’’s
office, he then filed yet another alleged false statement,
claiming that Maxam’’s counsel had never filed such a
motion although special prosecutor Hobbs had responded to
the motion.
After Maxam and her counsel produced a
time-stamped copy of the motion along with a time-stamped
affidavit of service proving that the motion had been
filed as stated, Catena then ordered that a copy be sent
to him and he quickly summarily denied it---
seven months after it was filed.
As of May 6, although now a judge, Hobbs
had still not removed himself as the special prosecutor in
the Maxam cases nor had Catena recused himself.
It appears that Catena would be
represented by the Attorney General ’’s
office in the special proceeding challenging his
jurisdiction. Maxam said that finally, Attorney General
Spitzer is going to have to address the oath of office
issue.
Although the NYS Oaths Project has
repeatedly requested Spitzer as the chief law enforcement
officer of the state to enforce the law pertaining to
public officers and the vacating of office for failure to
timely and properly file their oaths and bonds, to date
Spitzer has refused to discuss the matter publicly or
acknowledge the issue in any way.
A hearing is scheduled for May 26 in
state Supreme Court.
Judge Sise
Legislates
From Bench; Cites
Nonexistent Law in Oaths Cases
NEWS RELEASE
April 23, 2004
Call 877-878-5902
NYS Oaths Project
Acting Warren County Supreme Court Judge Joseph M. Sise
appeared to be attempting to play legislator in his recent
dismissal of the three special proceedings brought by NYS
Oaths Project coordinator June Maxam.
Maxam sought to
compel the filling of the vacancies created when various
Warren County public officers failed to timely and
properly file their oaths of office and undertakings.
Three mandamus
proceedings brought by Maxam to compel the Warren County
clerk and several municipal clerks to perform their
statutory duties in filling existing vacancies in offices
in the county’’s criminal justice system were dismissed by
Sise in early March.
Maxam has filed
notices of appeal indicating that she will pursue the
matter in the Appellate Division of the state Supreme
Court, Third Department.
She has 120 days
to file her briefs and memorandums of law.
""Judge Sise not
only totally misstated facts in the matters"", Maxam said,
""but he based his decision on nonexistent law which seems
to indicate that perhaps he lost sight of his role. It’’s
not up to him to make new law but to interpret and rule on
existing law"", she said.
""What was
particularly appalling in his decisions was that he
totally disregarded the provisions of the state
Constitution which seemed to indicate his total ignorance
of the Constitution as well as statutory law, case law and
administrative rulings"", Maxam added.
""His rulings
were so off the wall I question if he even read the
petitions and the memorandums of law that were filed"".
The first
proceeding, filed in July, 2003, had sought to compel
Caryl Clark as the Warren County clerk to perform her
duties in filling the vacancy existing in the office of
Warren County sheriff and to compel the town clerks to
perform their duties in filling the existing vacancies in
the offices of five town justices.
A second action
challenged the titles of acting county court judge Felix
Catena and Glens Falls city court justices Richard
Tarantino and David B. Krogmann.
The third action,
for which Sise never so much as called a conference or
held any court proceeding, challenged the vacancies in
offices claimed by Family Court judge J. Timothy Breen
acting as combined county court/surrogates court judge;
probation officer Mark Sager and special district attorney
Gary C. Hobbs.
According to
records in the Warren County clerk’’s office, Larry
Cleveland did not file either the requisite oath of office
or undertaking during the time he claimed to be
undersheriff of the county and since 1999 when he was
appointed to the office of sheriff, then elected, records
show that Cleveland has never filed the requisite
undertaking.
The county
clerk’’s records also indicated that James McDermott,
Michael Muller, Robert McNally, Ralph Dubay and James
French, who claim to be town justices in Chester,
Queensbury and Johnsburg respectively, had failed to file
either their oath of office, bond or both in the county
clerk’’s office as required by law.
The first
proceeding also sought to compel the town clerks in
Chester, Queensbury and Johnsburg to perform their
statutory duties under Town Law 30
But Sise said
that failure of a sheriff or town justice to file an
undertaking does not result in those offices being deemed
vacant and cited Public Officers Law Section 403 and Town
Law Section 25.
There is no such
law as POL 403 and additionally, Sise failed to properly
cite not only existing statutory law but Article XIII,
Section 13 of the NYS Constitution.
""It’’s
disturbing that a state Supreme Court justice isn’’t
familiar with the provisions of the NYS Constitution and
apparently couldn’’t bother to even refer to the pertinent
sections of statutory law or the copious case law that was
cited"", Maxam said.
The state
Constitution specifically stated that ""sheriffs…….may be
required by law to renew their security (bonds) from time
to time----and in default of giving such new security,
their offices shall be deemed vacant"".
Maxam also
pointed to Public Officers Law 11 which states that ""an
officer for whom an official undertaking is required shall
not receive any money or property as such officer or do
any act affecting the disposition of any money or property
which such officer is entitled to receive or have the
custody of before he shall have filed such undertaking.
She says this
specifically excludes the five town justices in addition
to alleged Glens Falls City court justices Richard
Tarantino and David Krogmann from having assessed or
collected ANY bail money or fines during the entire
pendency of their terms as none of them have filed their
undertakings as required by law nor has Cleveland.
She said that
Sise is totally in error when he says there is no
provision in law that vacates the office for an officer’’s
failure to file an undertaking.
""It is
statutorily established that Public Officers Law 30(1)(h)
specifically states that ‘‘every office shall be vacant
upon the……..refusal or neglect to file his official oath
OR undertaking, if one is required, before or within 30
days after the commencement of the term of office for
which he is chosen"", Maxam quotes.
‘‘Why does he
have such a problem simply reading the law. There is no
need for any interpretation. It’’s black and white"",
Maxam says. ""It’’s a matter of law and contrary to his
ruling, copious case law has held that a mandamus
proceeding is the proper procedure in such cases as
challenging title""
She also points
to the provisions of County Law 403 regarding official
undertakings which reads and ""the…….sheriff and such
county officers as shall be specifically required by
law…….shall before entering upon the duties of his office,
execute an official undertaking as provided by Section 11,
Public Officers Law…….Until the sheriff…….shall execute
and file the required undertaking
he shall not perform
the duties of the office nor be entitled to any
compensation"".
""Even the U.S.
Supreme Court has held that if a sheriff does not timely
file his undertaking, he has vacated the office"", Maxam
notes.
She cites
Parker v. Overman which held that ""those severe
inflictions upon the office of sheriff (vacating the
office) for his neglect to comply with the exigencies of
the act, indicate clearly the importance attached to his
compliance in the view of the Legislature…….The state
makes the time within which these acts were to be
performed material, and a strict and exact compliance with
its requirements is a condition precedent to the vesting
of any authority in the office"".
""Even Warren
County and its officers are bound by the rulings of the U.
S. Supreme Court"", Maxam says, ""regardless of what Judge
Sise says"".
She also points
to the fact that Sise has misstated the cause of action of
the proceedings, saying that Maxam sought to declare the
offices vacant.
""The offices
were and are already vacant"", Maxam said, ""and they
continue to be vacant. Those officers have no lawful
authority to collect compensation from the taxpayers. They
are in effect engaging in a larceny, taking money to which
they are not legally entitled""
. ""The mandamus
action was to compel the clerks to perform their duties in
filling the vacancies"", she said. ""The courts, with the
exception of Warren County, have consistently held that
the vacancies in office occur automatically, by operation
of law, when the officer fails to take and file his oath
and bond properly. No judicial procedure is necessary to
declare the vacancy, no notice is necessary. Sise can’’t
legislate new law"".
Maxam also
attacks Sise’’s ruling which says that probation officer
Mark Sager is not a public officer. ""The man needs to
read the law----it is specifically held in Criminal
Procedure Law as well as other statutes and numerous
rulings by the Attorney General’’s office that a probation
officer is a peace officer. All peace officers are public
officers and therefore subject to Public Officers Law"",
Maxam says. ""And that includes Mark Sager"".
In regard to
Warren County family court judge Breen who filed his oath
of office more than two years late, Sise ruled that
belated filings, known legally as nunc pro tunc (now for
then) are acceptable.
""There are
simply no nunc pro tunc filings allowed"", Maxam says. The
Appellate Division ruled in 1994 in Lombino v. the Town
Board of the Town of Rye that there can be no belated,
retroactive filings. In that particular case, the court
held that even though the officer had filed only one day
late, the filing was untimely resulting in his vacating
office"".
The Court of
Appeals refused to disturb the ruling.
In 1996, the
state Supreme Court held that if Public Officers Law 30
produces a popularly perceived harsh result by not
permitting any exceptions to its mandate, the remedy lies
not with the court but with the Legislature.
Maxam also points
to numerous administrative rulings on the subject by the
state Attorney General and the Office of the State
Comptroller. Both offices have issued opinions that the
failure of a public officer to file an oath or bond is not
correctable because the statutes specifically create the
vacancy without providing a remedy.
She said that in
the matter of special district attorney Gary Hobbs, Sise
was doubly wrong. Hobbs’’ can’’t be said to have filed
nunc pro tunc, Maxam said, ""because the county clerk has
issued a written certification saying that Hobbs never
filed at all even though he falsely told the Warren County
district attorney’’s office he had. He should be charged
criminally and prosecuted for making a false written
statement"", she said. ""Sise is also wrong when he points
to Public Officers Law 15, claiming that any acts
undertaken by Hobbs are valid. Hobbs has never filed his
certificate of appointment and therefore has never held
legal title to the office of special district attorney. In
order to be a de facto officer, he must first be a de jure
officer, that is, hold title to the office and Gary Hobbs
clearly does not"".
""Judge Sise
can’’t totally disregard rulings by the U.S. Supreme
Court, Court of Appeals and Appellate Division. It is
established law. He has made fatal errors in dismissing
the petitions""
Maxam says there
are multiple other problems with Sise’’s rulings
dismissing the three actions.
""I feel
extremely confident that the Appellate Division will
overturn Sise’’s decisions as they have consistently ruled
in the past that there are no exceptions to the law. If a
public officer doesn’’t timely file his oath and/or bond,
he vacates the office, cannot perform the duties and
cannot collect compensation"".
Anyone interested
in helping fund the appeals or attorneys interested in
helping perfect the appeals may contact Maxam at
877-878-5902, by email at
empirejournal@ureach.com
or by writing to Box 408, Chestertown, NY 12817.
Jurist Purist: Boot
'Unsworn' Judges
Brad Hamilton
New York Post
April 11, 2004
Hundreds of
small-town justices across the state never took their
oaths of office
and should be booted from the bench because of the flub,
an upstate activist claims.
June Maxam, an
activist and newspaper publisher in Warren County, says up
to 90 percent of the state's 2,200 town and village
justices never bothered to file the oath or an insurance
bond that's also required to be a judge.
State law says
judges must file the oath within 30 days of taking office.
"You're out
automatically," said Maxam, 55. "It's a matter of law."
Maxam stumbled
across the issue while battling several judges who ruled
against her in a 1998 harassment case that came after she
ripped public officials in one of her newspapers.
Maxam wants to
boot the three judges, Glens Falls city court jurists
David Krogman and Richard Tarantino and Montgomery County
Court Judge Felix Catena, who once threatened to jail her.
A judge tossed her petition last month.
Oath Coordinator
Resigns:
Corruption In Courts Is Too Entrenched
Press Release
Calls
For A Federal Investigation
March 18, 2004
Chestertown, New York-
The
coordinator for the New York State Oath of Office Project
June Maxam, tearfully confided yesterday (March 18)
that she has resigned from her investigations into
the explosive judicial scandal rocking New York courts.
""Something happened to me
yesterday, it's like a piece was taken out of me, it's
physical, it's like I had a stroke or shock, I am in just
a state of total disbelief not only that the court totally
disregarded the truth but obviously wasn't interested in
the truth.""
Maxam is responsible for
uncovering nearly 82 percent of judges across New York who
are violating the state Constitution and New York State
law for failing to file their oath and or undertaking as
mandated. ""The situation in our courts extends beyond
those in non-compliance and right smack into corruption so
wide-spread there must be a federal investigation."" Maxam
continued.
""When you have solid
proof of falsified transcripts and
a judge and a DA who refuses to act upon it
……allows this, New York has a major problem."" Maxam was
appealing a four year-old harassment
conviction before Glens Falls City Court Judge
Tarentino.
After a two-year delay in
violation of three court orders, when court stenographer
Jayme Harvey finally produced the transcripts needed for
the appeal, Maxam found that they had been falsified and
could prove it by an unedited tape recording of the
proceedings in question.
But Tarantino refused to
listen to the tape, refused to compare the actual
transcript with the falsified transcripts and allowed the
falsified transcripts to serve as the official record.
""Tarentino isn’t even in
office, nor is the special prosecutor, Gary Hobbs and
Hobbs even filed a false statement with the Warren COunty
District Attorney's office claiming he had filed an oath
when the county clerk has certified he did not" Maxam
lamented.
""The issue here isn’t
about me. Everyday I get calls from all over New York from
people so extorted by our courts begging me to help expose
the corruption. What they fail to understand is my
investigative journalism has cost me the ability to
regularly publish my paper, my advertisers were threatened
with being burned out and now its gone on to the level of
harassing my 86 year-
old father, all in an
effort to stop me from exposing the corruption. If that’s
not illegal what is? That is a total abuse and corruption
of the judicial system.""
Maxam says that even
lawyers are too afraid of the current system to act,
""Judges in New York are allowed to violate our laws and
lawyers are too fearful to speak-up……our Attorney General
could care less that judges wield power that overextends
their authority. Where is Chief Justice Judith Kaye? Does
it matter to her that her fellow justices are violating
not just public officers law, but trashing both our state
and federal Constitutions……apparently not.""
Ms. Maxam’’s activism to
force compliance by officials has as she stated, ""Put me
in personal danger and I face four years in jail after
having already been illegally incarcerated four times
because officials willfully ignore the Bill of Rights.""
When asked if she believed giving up her crusade would
alleviate her legal problems, Maxam emphatically stated.
""Oh, for certain. I’’m a threat to their power base. They
must shut me up because I have exposed them for what they
are …… imposters and gangsters in black robes.""
The findings of Maxam’’s
investigation was hand delivered to Attorney General
Spitzer who as of this date has not commented nor
apparently acted to reform our justice system.
Oaths Coordinator Entitled
To Automatic Reversal
Of Conviction : Supreme Court
NEWS RELEASE
For More Information
Call 877-878-5902
NYS Oaths Project
March 10, 2004
If a criminal defendant
is put on trial without counsel and her right to counsel
has not been effectively waived, she is entitled to an
automatic reversal of the conviction, the U.S. Court of
Appeals has recently ruled.
June Maxam, editor/publisher of
Chestertown-based North Country Gazette and coordinator of
the NYS Oaths Project, has long argued that her Sixth
Amendment right to counsel was violated in December, 2000,
when Queensbury Town Justice Michael Muller forced her to
trial without counsel, denying her request for a 48-hour
adjournment because her retained counsel could not be
present due to other court commitments.
The federal Court of Appeals recently
reaffirmed the U.S. Supreme Court ’s
numerous well established rule that if a defendant is
denied the right to counsel, that error is structural and
calls for automatic reversal of the conviction.
In an October,
2003 ruling, the federal Court of Appeals for the 9th
Circuit found that numerous U.S. Supreme Court rulings had
established that
"if the accused...is not represented by counsel and has not
competently and intelligently waived his constitutional
right, the Sixth Amendment stands as a …….bar to a valid
conviction and sentence depriving him of his life and
liberty".
Maxam said her attorney will file the
necessary paperwork next week to end the over three year
delay in filing her appeal and secure the automatic
reversal of conviction for the 1998 harassment cases that
originated in the Town of Chester but were tried in
Queensbury Town Court.
Maxam said it is undeniable that she
never waived her right to counsel, having in fact paid a
retainer deposit to Albany attorney Julio Hernandez.
But because Hernandez could not be
present in court the morning the trial was to begin and
the retainer agreement had not been completed, Muller
refused to grant the requested adjournment and ordered
that Maxam either take the plea deal offered by special
district attorney Gary Hobbs or proceed to trial pro se.
She refused to plea guilty and was
forced to trial representing herself over six days with
Muller even denying her request for counsel to sit at the
counsel table with her to assist with procedural issues.
The Supreme Court has held that until a
criminal defendant waives a particular right he continues
to have it. An unwaived right is an unimpaired right.
There is no argument that Maxam ever
waived her right to counsel.
The reason for the denial of counsel is
irrelevant, the federal court recently reaffirmed in a
California decision.
"What matters is
that the defendant was put on trial without a lawyer
though the Constitution guarantees her that right. That is
the kind of defect in the trial process the Supreme Court
has told us time and again cannot be
unscrambled…........... Automatic reversal of the conviction is the
only remedy", the court held.
Maxam served 17 days in jail over
Christmas, 2000, before being released on bail in early
2001. Her efforts to appeal the conviction have been
thwarted and frustrated for nearly two years by the court
stenographer refusing to provide the pre-trial and trial
transcripts, failing to comply with three court orders to
do so.
When the stenographer did finally
provide the transcripts last spring, Maxam immediately
charged that they were falsified with key portions missing
and other sections sanitized of prejudicial remarks and
rulings by Muller.
Hobbs has made several unsuccessful
motions to dismiss Maxam ’s
appeal and force her to jail for nine months for failing
to file the appeal.
Acting Warren County Court judge Felix
Catena has also moved to dismiss it on his own motion
which was blocked by the defense citing the fact the
excessive delays were caused by the People and its agents,
not the defense who could not perfect an appeal without
the record.
Catena then tried to incarcerate Maxam
in December, 2003, but that was blocked by Fulton County
Court Judge Richard Giardino who issued a last minute stay
for Maxam, stating that her incarceration would hinder the
progress of the appeal. It was learned at that proceeding
that Queensbury town court and Muller hadn ’’t
remitted Maxam’’s bail money to Glens Falls City Court as
required, saying that they couldn’’t find it, according to
city court justice David B. Krogmann.
Although the
issue of the transcripts had been sent to the Glens Falls
City Court in September, 2003, for a reconstruction
hearing, that court took no steps to do so until holding a
conference in the matter last week, effectively delaying
Maxam ’’s
appeal another five months.
She said she just
recently became aware of the October, 2003, federal court
ruling.
"I’’ve already
been seriously prejudiced by these egregious violations of
my constitutional rights, including unlawful
imprisonment"", Maxam said. ""Even Warren County has to
comply with the rulings of the U.S. Supreme Court and the
U.S. Court of Appeals. This matter has not only caused
great harm to me but great unnecessary expense to the
taxpayers of Warren County. Mr. Hobbs should not be paid
any more money to further perpetrate the violation of my
rights. I would expect this matter to be resolved by the
automatic reversal of the convictions without further
delay and expense".
Judge
Cites Wrong Facts,
Inapplicable Law in Dismissing
One Oath Case—2 Still Pending
PRESS
RELEASE
For more information
Call 877-878-5902
NYS Oaths Project
Citing inapplicable case law and misstating numerous
facts, acting Warren County Supreme Court Judge Joseph M. Sise has dismissed one of the three special proceedings
relating to oaths of office and undertakings brought by
June Maxam, coordinator of the NYS Oaths Project.
Maxam said she will appeal the decision to the state
Appellate Division based on the numerous errors of law and
misstatements made by Sise.
Two other special proceedings filed regarding the oaths of
office and undertaking issue are still pending.
“It was like he was trying to twist the facts to fit
what he wanted the decision to be”, Maxam said, “or what
he was told it was to say”.
The decision addressed the proceeding filed Dec. 19
against Warren County Clerk Caryl Clark to compel her to
declare vacancies in the office of acting family court,
county court and surrogate’s court judge J. Timothy Breen,
probation officer Mark Sager and attorney Gary C. Hobbs
who has been acting as a special district attorney for
nearly six years in one case.
Citing an inapplicable case dealing with fire chiefs, Sise claimed that Sager is not a public officer and
therefore not subject to Public Officers Law.
However, Maxam pointed to several opinions issued by
the state Attorney General’s office, the State
Comptroller’s office as well as case law and statutory law
including both Public Officers Law, Executive Law and
Criminal Procedure Law which clearly state that a
probation officer is a peace officer and as such, is a
public officer subject to the provisions of Public
Officers Law.
Several opinions issued by the Attorney General’s office
as well as case law specifically state that probation
officers are indeed public officers rather than just
employees.
Sise misstated the dates when Maxam had made upon the
county for the county clerk to do her job and claimed that
the proceeding had not been timely filed.
Maxam said that even if no proceeding had been
brought at all, the vacancies would still exist in the
offices as a matter of law because Breen, Hobbs and Sager
had not filed their oath and undertaking in the case of
Breen, within the time allotted by law and in the proper
place.
“No one is above the law”, Maxam said, “ not even
these individuals”.
An Article 78 proceeding must be filed within four
months after a demand is made on a public body and the
demand is refused or unanswered. In Breen’s case, demand
had been made upon the county clerk in late August and in
the case of Sager and Hobbs, in early December, 2003.
With the proceeding filed on Dec. 19, the time requirement
had been met, Maxam says.
Sise also ruled against the precedent case law that
has consistently held that there can be no belated
filings, known in legalese as “nunc pro tunc”, now for
then.
State statute and case law provides that the oath of
office and undertaking if required must be filed in the
proper place within 30 days of the commencement of the
term of the office is vacated by operation of law.
In the case of Breen, although he claims to have taken
office Jan. 1, 2000, he did not file his oath of office as
required until June 13, 2003, some 2 ½ years later. The
higher courts have consistently ruled against Sise and
held that there can be no retroactive filings, that there
is no remedy under the law if a public office does not
properly file within 30 days of the commencement of the
term.
“Sise’s ruling is simply not based on the law. He
took the easy way out and played politics, I understand
what he did and why But it doesn’t make it correct
though, and it’s not”, Maxam said.
“Judge Sise himself was the subject of a formal
opinion issued in 1998 by the Attorney General’s office
prior to him assuming the office of state Supreme Court
justice and that opinion was a support cite in my
proceeding”, Maxam said.
“Judge Sise ruled against the very ruling that
allowed him to hold title to the office and in fact, I
question if he shouldn’t have recused himself in the
matter. He never held a conference or court proceeding in
the matter, simply dismissed it without respondents ever
filing an answer, only filing a motion to dismiss”, Maxam
said.
In the case of Hobbs, not only did he not file his
oath of office as required in any of the eight
appointments that he claimed he was named special district
attorney but he didn’t file the certificate of appointment
as required with either the Office of Court Administration
or the county clerk’s office, Maxam said. She says that
the law specifically states that without the appointments
and oath filed, the officer does not have title to the
office and has not qualified for the office. No title, no
authority to perform the duties nor collect compensation.
“There can’t be two separate sets of rules in Warren
County, one for the politicians and one for the peons.
There can’t be double standards in the law”, Maxam says.
“The law has to be applied equally to everyone”.
Maxam has filed a criminal complaint against Hobbs with
the Warren County District Attorney’s office for alleged
official misconduct and the alleged making of a false
written statement to the district attorney regarding his
claimed oath of office.
When Maxam had earlier learned that Hobbs had not
filed his oath of office as required, Hobbs then produced
a sworn oath that he told DA Kate Hogan he had filed with
the county clerk’s office as required “nunc pro tunc”.
Not only are nunc pro tunc filings not acceptable,
but Hobbs never filed the oath as he claimed according to
certifications by the county clerk, indicating that Hobbs
had intentionally made a false statement to the county’s
chief prosecutor.
In the matter of Sager, it appears that he has submitted a
false resume to the county, stating that he has been a
senior probation officer since 1986.
According to Richard Kelly, Warren County personnel
officer, Sager was not appointed senior probation officer
with the county until 1998---a difference of 12 years
rendering his resume false.
Maxam has filed a complaint with both the Warren
County Board of Supervisors and the district attorney’s
office in regard to Sager’s alleged false instrument.
Sise has still not ruled on the original two special
proceedings filed in regard to the NYS Oaths Project, the
first filed in July, 2003 which challenges the title to
office of five town justices and Larry Cleveland, Warren
County sheriff.
The second proceeding, filed in October, 2003,
addresses former city court justice David Krogmann;
Richard Tarantino, Glens Falls City Court and Felix
Catena, Montgomery County Court judge who has been
assigned as acting Warren County Court judge in matters
pertaining to Maxam.
Maxam has asked for Tarantino’s recusal and has
demanded that Hobbs disqualify himself due to the multiple
existing conflicts of interest including several pending
criminal investigations of Hobbs including one regarding
the alleged false transcripts by court stenographer Jayme
Harvey from the pending Queensbury appeal.
Catena had ordered that the Glens Falls City Court
incarcerate Maxam in December, 2003 after ruling that
alleged Queensbury town justice Michael Muller had had no
jurisdiction to set bail and issue a stay to Maxam while
the appeal was pending from a harassment conviction in the
Queensbury town court.
It was then announced from the bench by Krogmann that
Queensbury town court and Muller couldn’t find the bail
money and had not paid it to Glens Falls City Court as
required by law.
Fulton County Court Judge Richard Giardino issued a
stay of judgment squashing Catena’s order and continuing
Maxam’s release but in the meantime, Muller and the
Queensbury Town Court have come under intense scrutiny by
the Queensbury Town Board and several state agencies.
It has since been learned that Muller and the Queensbury
town court allegedly did not submit their books and
records to the Queensbury Town Board as required by law at
the last audit meeting of the year. State law says
that if a town justice fails to do so, he is guilty of a
misdemeanor and forfeits office on conviction.
Catena himself is currently the subject of a criminal
complaint by Maxam filed with the Montgomery County
District Attorney’s office after it was learned that
Catena had filed a report with the state Office of Court
Administration on Jan. 4 stating that he had no motions or
actions pending for more than 60 days.
Maxam and her attorney, Theresa Suozzi, had filed a
motion on Sept. 15, 2003, to transfer matters pending
against Maxam from the Glens Falls City Court. Although
Hobbs as special prosecutor had responded to the motion,
Catena had never ruled on it which is a violation of court
rules which dictate that all motions and proceedings must
be decided within 60 days of the final pleadings.
Maxam said that as of the date that Catena filed his
report with the state, the motion was already
approximately 120 past, more than double the allotted
time.
Catena has continued to claim that Maxam and her
attorney never filed the motion, despite Hobbs having
responded. Catena was supported in his position by Joseph
Hughes, chief clerk of the Warren County Court.
Maxam and her attorney have produced not only a
time-stamped copy of the motion as filed with the court,
stamped by Hughes himself, but has also produced a copy of
the affidavit of service proving that it was filed
indicating that both Hughes and the judge have made false
statements to the Montgomery County district attorney’s
office.
The matter has been reported to both the Office of
Court Administration and the New York State Commission on
Judicial Conduct and Maxam has demanded that Catena be
removed from her appeal pending from the Queensbury
harassment case.
Court of Appeals Judge May Have Vacated Office
By Failing to Timely Take Oath Are Judges Above the Law,
Even If They Are Sitting on the State’s Highest Court?
NEWS RELEASE
For more Information
Call 877-878-5902
NYS Oaths Project
February 22, 2004
The newest
appointee to the Court of Appeals may have already vacated
office for failing to comply with the law and the state
Constitution, the coordinator of the NYS Oaths Project says.
New York City
lawyer Robert S. Smith, a major campaign contributor to Gov.
George Pataki, was unanimously approved by the State Senate
to the judiciary panel and began sitting on cases Jan. 13,
according to published reports.
But Smith didn’t
take his oath of office until Feb. 17 at a formal
swearing-in ceremony, more than 30 days after his
appointment and by law, it appears he has vacated his office
by operation of law.
"Even Court of
Appeals judges have to comply with the law and the
provisions of our state and federal Constitutions"", NYS
Oaths Project coordinator June Maxam says.
"It’s scary when judges in the state’s highest court
aren’t in compliance with the law themselves and seem
oblivious to the law even with all the recent publicity
concerning the oath of office issue", Maxam said.
Coincidentally,
Smith’s swearing-in ceremony by Chief Judge Judith Kaye was
held just hours after a front-page story on Maxam and the
oaths project by capitol bureau news reporter Elizabeth
Benjamin first appeared in the Albany Times-Union.
The State
Constitution requires that "members of the Legislature and
all officers, executive and judicial, except such inferior
officers as shall by law be exempted, shall before they
enter upon the duties of their respective officers take and
subscribe an oath of affirmation".
By law, Smith could
not lawfully perform any of the duties of the office until
he took and subscribed his oath.
The Legislature has
mandated that the strict penalty for failure to comply with
the statutory mandates of taking and filing the oath of
office is automatic removal from the office. The court has
stated that if office holders find this penalty too harsh
for violating the public trust and breaching their contract
with the people, the remedy lies with the Legislature.
"Eliot Spitzer as
Attorney General is the state’’s chief enforcement officer
and heads the Public Integrity Unit", Maxam says, ""but
although he’s certainly aware of the mass non-compliance of
public officers with state law and Constitution, to date he
has taken no steps to enforce the law and ensure that the
state’s judiciary comply with the law".
Maxam says that a
report on the findings of the NYS Oaths Project was
delivered to the Attorney General’’ office in December but
short of acknowledging receipt of the 315-page document,
Spitzer has ignored the situation and she says that’’s a
failure of him to perform the duties of his office.
State Public
Officers Law requires that all public officers, elected and
appointed, must take and file their oaths of office within
30 days of the commencement of their term or appointment or
they have vacated the office by operation of law. The law
provides for no remedy, no judicial procedure is necessary
to effect the vacancy and no notice is necessary.
Smith and his wife
reportedly contributed more than $146,000 over the past five
years to either Pataki or related Republican campaign
committees.
Smith graduated
from Columbia Law School first in his class and would have
received an annual salary of $151,200 for a 14-year term.
According published
reports, although Smith did not take his oath of office
until Feb. 17, more than 30 days after his appointment on
Jan. 12 by the State Senate, he has been hearing cases on
the seven-member panel since Jan. 13, giving rise to
question the propriety of decisions issued by the panel
between Jan. 13 and Smith’s taking of the oath.
He had been
nominated for the position in November by Pataki.
Smith has no
judicial experience and has been in private practice since
1968. His practice includes constitutional litigation and
civil rights law, according to his biography.
Maxam says
"ignorance of the fundamental constitutional requirement to
take and subscribe his oath of office before entering upon
the duties of the office is no excuse and cannot be excused.
The integrity of the state’s entire judicial system is at
issue".
""I would certainly
expect that a member of the state’s highest court be in
compliance with the law himself. If he doesn’t know the
law, how is he ever going to apply it and sit in judgment of
others", Maxam says. "How can you trust a judicial
officer who is in violation of the law himself?"
Pataki is well
aware of the laws pertaining to the taking and filing of
oaths of office. In December, 2003, he removed Kenneth Kelly
from the Rockland County Community College board of trustees
for failing to file his oath of office in the county
clerk’s office within 30 days of the commencement of his
term.
Pataki then
appointed Kelly’s replacement.
Kelly had been
appointed to the board by Pataki in January, 2002, but in
December, 2003, received a letter from the Governor’s
office notifying him he had vacated the office for failing
to file his oath.
Point of Law Sparks Woman's Crusade
June Maxam Contends Many of the State's Judges
Don't Comply with a Basic Requirement of Office
By Elizabeth Benjamin
Time Union
Capitol bureau
Tuesday, February 17, 2004
ALBANY NY Armed with
little more than a home computer and righteous
indignation, June Maxam has made New York's judicial
system sit up a little bit straighter on the bench.
The 55-year-old Warren
County native has been fighting for several years to
have many of the state's roughly 3,300 judges removed
from their posts because she believes they did not
properly file their legally mandated oaths of office.
"To me, it's a breach of
public trust," said Maxam, who is single-handedly
running the Oath of Office Project from her Chestertown
home. "They're sitting in judgment of everyone else.
They have a responsibility to follow the law."
Court officials chalk the
oath problem up to an administrative technicality. But
it has raised questions about what would happen to the
decisions handed down by judges if they were, in fact,
not legally sitting at the time. Albany Law School
Professor Vincent M. Bonventre said it's highly unlikely
the state's highest court would vacate hundreds of
decisions -- even if the judges who made them hadn't met
their oath requirements.
"This is really more of
a ministerial matter, "Bonventre said. "If the statutes
were applied literally, it would upset far, far too many
things. I can't imagine the Court of Appeals allowing
that to happen."
At least three state
laws, including the Unified Justice Court Act and the
Public Officers Law, as well as the state constitution,
require elected and appointed public officials to file
an oath of office within 30 days of the start of their
term. If they don't, the Public Officers Law states,
they cannot legally perform their duties. Failure to
file within 30 days creates a vacancy in the office, and
county law obligates county clerks to notify the
appropriate governing body so it can choose a successor.
But the laws differ on
where to file the oaths. Some say the county clerk. Town
law, amended in 1994, says local judges can file with
the village or town clerk. State-level officials are
supposed to file with New York's secretary of state, and
justices must provide a copy to the state Office of
Court Administration.
The way Maxam reads
these laws, oaths must be filed with the county clerk
for all but state-level judges.
OCA had long maintained
judges were covered if they had at least one oath on
file. But the agency appeared to reverse itself in a
December memo urging all incoming and returning town and
villages justices to file oaths with OCA, the county
clerk and the municipal clerk.
OCA spokesman David
Bookstaver said OCA still believes a justice only needs
to have one oath on file to comply with the law. But
with the laws "all over the lot," he said, OCA has
adopted a better-safe-than-sorry approach.
"Because of the
ambiguity of the statutes, we decided that you might as
well file in all places," Bookstaver said, insisting the
new approach has nothing to do with Maxam's efforts.
Maxam said she feels
vindicated, though her crusade isn't over.
Maxam, who began the
Oath of Office Project in earnest a little over a year
ago, said she gathered information on oaths through
Freedom of Information Law requests to 41 of the state's
62 counties. She estimates that up to 90 percent of
local judges in those counties failed to file an oath
with their county clerk or, in some cases, a legally
mandated insurance bond. The counties included Albany,
Columbia, Rensselaer, Saratoga and Schenectady.
Out of 37 judges
surveyed by the Times Union earlier this year in Albany
County, for example, only 11 had oaths on file at the
county clerk's office. Calls to town and village clerks
revealed that most had filed oaths there.
Maxam maintains that
judges who filed incorrectly are not let off the hook by
making a new filing under OCA guidelines. She points to
past opinions by the state attorney general and
comptroller that public officials can't fix their
failure to file an oath on time. In the early 1990s, the
town of Rye in Westchester County removed a town
assessor after he filed his oath of office one day late
-- a move upheld by the state Supreme Court Appellate
Division in 1994.
Maxam's widespread quest
for information threw many county clerks into a tizzy.
They didn't believe they had the legal right to vacate
judicial offices and sought guidance from OCA.
"These people were
elected, and I don't feel comfortable vacating an office
unless I have a court order or something of that
nature," said Schenectady County Clerk John J. Woodward.
Maxam -- whose
relentlessness caused consternation among clerks, some
of whom complain about heated e-mail or phone exchanges
with her -- has had a run-in with the law herself, which
she said sparked her interest in oaths of office. She
was charged with harassment in 1998 in a case she says
stemmed from her criticism of local officials in
articles she wrote for her publication, the North
Country Gazette.
Maxam has filed Article
78 proceedings -- legal action taken against public
officials or municipalities -- against several officials
in Warren County for failing to file oaths, including
the judge and special prosecutor who were involved in
her case and the clerk who did not vacate their offices
as a result. The lawsuits are pending.
Many government
officials dismiss Maxam as a crackpot who won't rest
until she sees the entire justice system dismantled.
Even some activists who agree with her premise and
admire her dedication have been put off by her often
aggressive manner and zeal.
Monroe Y. Mann, the Rye
town attorney who was involved in the 1991 assessor case
and has become something of an expert on oaths of
office, said Maxam is splitting legal hairs.
"It's a mere
irregularity if a judge didn't file an oath with the
county clerk," he said. "As long as he took the oath and
filed it somewhere, that's what the law requires. The
crucial issue is to take the oath and swear to uphold
your duties."
But Bonventre deemed
Maxam's quest "perfectly viable."
"We have so many laws on
the books that there's no way anybody can know all the
laws they're supposed to be obeying," Bonventre said.
"But, that said, ignorance of the law is no excuse."
Albany County Clerk
Thomas Clingan said Maxam "actually served a purpose" by
helping him clear up the issue of the insurance bonds
required for county officials. The law says they must be
on file in his office, but they weren't.
But Clingan said he
doesn't see the "public benefit" of having multiple
oaths on file.
Maxam insists she is not
interested in upending the court system or, for example,
nullifying all the decisions of judges who, to her mind,
are improperly holding office. She does think the
confusing oath of office requirements should be remedied
by the state Legislature. On that point, OCA agrees,
although Bookstaver said it has no plans to push the
issue at the Capitol.
"There's an awful lot of
ambiguity in the law that has to be changed," Maxam
said. "There has to be a central location for these
things to be filed. I think the Legislature has to take
a real hard look and say: OK, this is the law, and you
must comply."
http://www.timesunion.com/AspStories/story.asp?storyID=219624&category
=REGIONOTHER&BCCode=HOME&newsdate=2/17/2004
Oaths Project: Maxam Impact On Public Officials
By Robert Lachman
Millbrook Round Table
January 29, 2004
When President Abraham
Lincoln met Harriet Beecher Stowe, author of the
volatile anti-slavery novel, "Uncle Tom¹s Cabin," he
said to her, "So, you¹re the little woman who launched
the big war."
That same comment might be applied to June Maxam, editor
of the North County Gazette in upper Warren County, who
launched the Oaths Project in 2003.
"I had seen non-compliance in Warren County and I
wondered if it was throughout the state, "Maxam said, in
reference to articles that have appeared in Taconic
Press¹ seven Dutchess County newspapers on officials
failing to file their oaths of office properly and on
time.
And just to demonstrate that no good deed goes
unpunished, Maxam faces additional, serious jail time in
response to her efforts to force public officials to
observe and obey the law that regulates what they do and
when they do it.
The exclusive stories in the newspapers that have
focused on Dutchess County public officers who have not
properly filed their oaths of office were inspired by
Maxam, a resident of Chestertown.
Maxam said, through her weekly publication, she has
worked to root out what she calls cronyism and
corruption among local politicians and law enforcement
since 1985. Local politicians don't like what her
newspaper has been saying about them. Further, she said,
she's paid a price for her vigilance.
The Oaths Project
In May 2003, Maxam said she founded the "Oaths Project,"
a statewide push to inform public officials about the
requirements of Public Officer¹s Law, Title XIII. The
law, dating to 1892, requires all public officials to
take the oath of office and to file it with their county
clerk. The law, in Warren County, has consistently been
ignored, Maxam says.
Even so, with the help of the Tyranny Response Team, a
conservative activist group, and aided by Constitution
Party Chairwoman Ginger Berlin, Maxam has been able to
get her message out.
Her research into public documents has led her to claim
that Dutchess County, as well as 22 other counties,
doesn¹t have a lawful town, village or city court
system.
Since many of these justices have not filed their oaths
of office or surety bonds (undertakings) with the county
clerk¹s office, they are not holding office legally, she
said.
It was a copy of Maxam¹s Freedom of Information Law
(FOIL) request for Dutchess County, and the county
clerk¹s response, that set Taconic Press on the trail of
this story. "I remember my first FOIL request was to all
of the third and fourth judicial districts. Then I
branched into the ninth (Dutchess County), the fifth,
sixth and seventh districts," Maxam said.
Always wanted to be a journalist
Maxam is a native of Chestertown and founded the North
Country Gazette in 1981. She has two bachelor's degrees,
one in public affairs, the other in criminal justice,
from Empire State University in Albany. She said she
always wanted to be a journalist and wrote for a local
weekly in high school. After graduating, she worked for
the Glens Falls Post-Star until 1971 when she got into
the restaurant business.
The Gazette began as a mimeographed newspaper that
became a successful weekly until 1994. According to
Maxam, officials pressured advertisers and newsstands to
boycott the weekly because of unfavorable press. It now
runs four times a year and is paid with donations from
friends and supporters. "People are afraid to
advertise in the paper, "Maxam said. She recently
started a newspaper with Ginger Berlin, called the
Empire Journal, that¹s based in Albany.
A vindication of sorts
Maxam said she believes filing an oath of office and/or
undertaking is comparable to regular citizens insuring
or registering their cars. It's the law.
Maxam said public officials must file their oaths to
ensure the trust between them and the public, a trust
that¹s inherent to the position. They must also file
their surety bonds to protect their municipalities and
citizens should they misbehave in office, she said.
It¹s clear from telephone interviews with her that she
is pugnacious and persistent. She admits officials have
called her names and made fun of her, claiming she¹s
malicious and hard to deal with. "I wasn¹t malicious
about it," Maxam said. "But they perceived it that way."
Even people who respect her say she's difficult.
Furthermore, any lay person citing the law to a judge is
not popular. But Maxam persisted, believing her
understanding of the Public Officer's Law was accurate.
And, it turns out she was right.
On Dec. 17, 2003, after months of researching and
releasing information on justices around the state who
have not complied with the requirements of the Public
Officer¹s Law, Maxam's research was vindicated.
The state Office of Court Administration on that date
sent out a memo to all town and village justices that
stated:
"Every town and village justice who will begin a new
term of office in 2004 must file a new oath of office
with the New York State Office of Court Administration,
before or within 30 days after your term of office
begins". Further, and more importantly for Maxam, the
memo states: "You must also file your oath of office
with the County Clerk's Office and the office of your
municipal clerk."
Taken a toll
Maxam spoke about how she became involved in this
controversial pursuit and the toll it has taken on her
life and the lives of her family, friends, and the
newspaper she founded. "In the fall of 2002, I started
looking at a Board of Elections case and something stuck
in my mind about oaths of office," Maxam said. "I
started researching the Public Officer's Law. "I
found that none of the people involved in the harassment
case against me at the town level had filed oaths of
office or undertakings," she said.
Maxam claims a long history of harassment against her by
various officials that began in 1985. She began writing
editorials exposing what she deemed local corruption and
the lack of drug law enforcement in Warren County. When
a sheriff¹s relative was arrested on a DWI charge, and
the local district attorney did not prosecute the case,
Maxam said she supported the arresting officer in her
editorial column. She said this stance led to
harassment.
None of her claims of harassment has been substantiated.
The Gazette still continued to publish stories alleging
abuses in town and school government, squandering of tax
dollars, outright violations of law in bidding
procedures and government operations.
A conviction, jail time and an appeal
Then Maxam claimed she was convicted of filing a false
statement (which she claims was a clerical error in the
transcript). She was sentenced to, and served, nine
months in county jail on what Maxam said was a
trumped-up charge intended to silence her.
Then, Maxam said, she was arrested again, in 1998, for
harassment. "A woman kept following me and taking
pictures of my house. "But I was arrested and charged
with taking pictures of her on my property and Œflipping
her the bird, so they took me to trial."
When Maxam tried to file a counter-complaint against
those she claims were harassing her, she was prosecuted
for filing a false statement. After numerous appeals,
Maxam was forced to serve the full sentence, nine
months, on the false statement charge.
But she has found out since then that none of the
justices or town officials involved in her trial had
ever filed oaths of office or undertakings. Therefore,
Maxam maintains, by law no one had the right to
incarcerate her nor did the sheriff have the right to
arrest her. "It all started because I feel if you¹re
going to sit in judgment on me, your backyard better be
clean," said Maxam. "And it's not."
Maxam has been appealing the harassment case since 1998.
In December 2003, David B. Krogmann, acting Glens Falls
city court justice, issued an order for Maxam to
surrender to him on Dec. 31 to finally serve a jail term
on the original charge. "So when I got to court on
Dec. 31, I expected to go to jail," Maxam said.
Her jail term hasn¹t started yet. Fulton County Judge
Richard Giardino issued a last-minute stay until the
appeal can be heard, possibly outside Warren County, so
Maxam remains free.
Krogmann and acting Warren County Court Judge Felix
Catena are both named in an oaths case litigation Maxam
recently filed. The question that lingers in her
mind is: Which justice would hear it? "It¹s that same
old double standard: ŒDo as I say, not as I do,¹ " Maxam
said. "There¹s another one I like too: ŒIgnorance of the
law is no excuse.¹"
Many Justices Bringing Down Gavel Illegally
By: Robert Lachman
Millbrook Round Table
January 29, 2004
Part one of a three part series
Almost 60% of Dutchess County's elected town justices
are holding office illegally, according to the terms of
an arcane state law that is largely ignored or
completely unknown. Title XIII of the Public Officer's
Law has a simple but basic requirement: Every public
official, from assessors to zoning board member, must
file an oath of office with the county clerk within 30
days of taking office.
Title XIII is
unequivocal and unforgiving. If an official fails to
file, the office is declared vacant - and a special
election must be held to reinstate that person or,
perhaps, another candidate, who successfully wins during
a special election.
Some public officials have never filed, some file
sporadically. One local legislator has filed since she
was first elected almost 14 years ago. "I believe very
highly in that oath. That's our obligation," said
Margaret Fettes, Dutchess County legislator for District
25 (Washington, Amenia, Stanford, Pleasant Valley), who
has consistently filed her oath of office.
Information
about public and elected officials in this article was
obtained from the Dutchess County Clerk's Office. "All
public officers are required to take oaths of office,"
said Albany election law attorney Richard Whitaker. "And
a formal oath has to be signed." "The purpose of the
statute is to secure trust rather than punish the
careless," said Carolyn Mann, deputy attorney with the
Town of Rye. The statute, she said, defines the
boundaries of public trust.
Mann, who
published an extensive article on Title 13 in the 1997
N.Y. Bar Journal, has become somewhat of an expert on
the issue. She has tried one case on Title XIII, but has
done extensive research on the law. "No exceptions" is
the subhead describing a group of case law she cites in
her journal article. In every case she has researched,
Mann said, the courts have uniformly upheld the
provisions of Title XIII.
Just this week, a cursory examination of Dutchess County
Clerk records, showed many justices, legislators, and
other public officials had not filed by the required
time - within 30 days of taking their oath.
The Law
Title XIII became law in 1892. The law was first
challenged in a New York City case in 1912. The court
upheld the law. Nearly a century later, the law is still
under challenge. And the courts still uphold it. Title
XIII: Section 10 of the Public Officer's Law, states the
manner and place where these oaths must be filed. "Every
officer shall take and file the oath of office required
by law, and every judicial officer of the unified court
system, in addition, shall file a copy of said oath in
the Office of Court Administration before he shall be
entitled to enter upon the discharge of his public
duties."
"The oath of
office is mandatory," Whitaker said. "My recollection is
you can't start your duties as a public officer until
the oath is filed." "The officeholder is there by the
public's good graces and the oath states the
officeholder swore to uphold the law," Mann said.
The law further
states: "The oath of office of every officer of a
municipal corporation ... (shall be filed) in the office
of the clerk of the county in which he shall reside, if
no other place be otherwise provided by law for the
filing thereof." Oaths of office must be filed with the
county clerk's office. There are no exceptions or
loopholes, and these oaths cannot be filed
retroactively, a legal term known as "nunc pro tunc,"
Latin meaning "now for then."
Moreover, Title
13 not only sets requirements for publicly elected
officials to fulfill the terms of office, but it also
provides the means to unseat public officers.
The Public Officer's Law clearly states the penalty for
not filing the oath: "Every office shall be vacant upon
the happening of one of the following events ... neglect
to file his official oath before or within 30 days after
the commencement of term of office ..."
The public
officer's law is one of the most powerful tools the
government has to regulate the trust that should exist
between public servants and the people who elect them.
"The oath of office is a very specific contract with the
public and the officeholder," said Mann, citing a
section of Title XIII that states, "no other oath,
declaration or test shall be required as a qualification
for any office of public trust ..."
Timing is everything
Section 104 of the Uniform Justice Court Act governs all
town and village courts in the state. Town Law 25 of
that section states that "before he enters on the duties
of the office and within 30 days after the commencement
of the term of office for which he is chosen every town
officer shall take and subscribe the constitutional oath
of office ... and such oath shall be filed in the office
of the county clerk."
But there is some confusion right now about who files
with whom. Some local public officials say they must
file only with their local municipal clerks.
But the law doesn't say that; it specifies county clerk.
And a recent letter from Cathryn Adler, deputy county
clerk, sent to all public officials in the county in
February 2003, well before election season, seems to
uphold the county clerk provision. "There has been some
confusion recently as to which local Oaths of Office
need to be filed with this office," the letter states.
"According to the Office of Court Administration, city,
town and village court judges should still be filing
their oaths with the County Clerk's office. All
Registrar of Vital Statistics' oaths should also be
filed there," Adler's letter states.
"A number of the towns said, 'We've never been asked to
do this,' and I must say it caused a lot of confusion
upstairs in the record department," said Adler. "As far
as I know, you have to file your oath with the county
clerk," Fettes said. She has filed after every election,
a review of county clerk records shows. Mann takes a
harder line in her article: "We submit that the failure
to timely file an oath of office is an important and
justifiable disqualification for holding public office."
Those Who Have Filed
Despite research indicating that many Dutchess County
officials have not filed their oaths of office, many
have and have done so faithfully.
Among them:
o County Executive William Steinhaus last filed on Jan.
1, 2000.
o Dutchess County Sheriff Adrian "Butch" Anderson filed
in 2002.
o Beekman Town Clerk Virginia M. Ward last filed in
2002.
o Hyde Park Town Justice Alice Mann last filed on June
19, 2003.
o Fettes (D, Millbrook) has filed every year since 1990.
"When you're elected, you swear to uphold the law and
you just hope you don't break it," Fettes said.
Those who have not filed
Research at the County Clerk's Office confirmed the
names of town and village judges, supervisors and county
legislators who have not filed their oaths. Some of them
have never filed.
Among them those not filing their oaths:
o Beekman Town Justice John C. Garito last filed his
oath in January 1996. He was re-elected in November.
o Town Justice Robert D. Ferris has only filed two oaths
with the County Clerk's office in 1992 and 1996. He was
re-elected.
o Dover Town Justice John Fusco last filed in January
1996. He is still in office.
o Red Hook Town Justice Roland R. Page last filed in
January 1996. He is still in office.
o Rhinebeck Town Justice William Sanchez has never filed
an oath of office with the County Clerk's Office and he
was re-elected in November.
o Millbrook Village Justice Mickey Prisco has never
filed his oath with the County Clerk's Office. He is
still in office.
o Stanley A. Frangk has filed only once -in January
1995, as a zoning board member. His election for town
justice is disputed and the Board of Election has not
made a final decision. Last week, just 11 votes
separated him from the front runner in one of two
justice slots in Hyde Park.
So?
Title XIII's provisions are clear: All public officers
must file an oath of office with the county clerk's
office within 30 days of taking the oath. State officers
must file with the Secretary of State, same time
requirement. City justices must file with the Office of
Court Administration, along with other state officials,
because they are regarded as state employees. "It's
important that everyone understand that the oath is a
very deep and hallowed responsibility," Mann said. (Next
week: Oaths of office are the simple provisions of Title
XIII. Two others are more complicated and will be
addressed next time.)
Illegal Judges Make Legal Rulings:
The
Question Of Null And Void
By
Robert Lachman
Staff Reporter
January 29, 2004
The simple
question that concludes this series of articles on town
justices holding office illegally Are their court
decisions legal? has complex, even inconclusive
answers. Taconic Press¹ seven Dutchess County newspapers
have run a series of articles on a little known and
largely ignored statute, Public Officer's Law, Title
XIII. The law, first enacted in 1892, requires all
public officials to file their oaths of office, along
with a declaration that they are bonded, with the county
clerk¹s office.
The law has been challenged over the decades but the
courts have consistently upheld Title XIII, along with
Town Law 25, and Section 104, that regulates where and
when oaths and undertakings must be filed.
Research into the Public Officer's Law has determined
that, as of December 2003, close to 60% of justices in Dutchess County hold office illegally. The issue that
has consistently engaged these seven newspapers is
astonishingly complex: What happens to a person
convicted of an offense in town court if the justice
is found to be holding office illegally?
Most
attorneys who were contacted for this article said they
thought a justice's rulings would prevail regardless of
legal status. The judge's decisions would not be
rendered null and void; no convicted criminals would be
released from jail; no fines would be reimbursed; no
points would be removed from a driver's license.
There¹s no definitive case law yet to support an
opposing position but as information on Title XIII
becomes more common there most likely will be. One
Poughkeepsie attorney, in fact, said he thought he would
be obliged to challenge on behalf of a client that
segment of Public Officer¹s Law that declares the office
vacant, if the law¹s requirement are not fulfilled.
One opinion: Rulings valid
Carolyn Mann, deputy attorney for the Town of Rye, was
successful in the late 1990s in removing from office a
town assessor who failed to fulfill the requirements of
Title XIII. She wrote an extensive article about the law
for the New York State Bar Journal in 1997. Monroe Mann,
Carolyn¹s husband, also was involved in the case for the
town. He maintains a justice's ruling are legitimate
even if he's holding office illegally. "The rulings will
still stand because it will be impossible to retry all
the cases," Mann said. "If the court declares the
position vacant because a judge didn't file, he was de
facto holding the office at the time of the rulings -
and no one objected," Mann explained.
Public Officer's Law, Section 15, states it clearly:
"If a public officer, duly chosen, has heretofore
entered, or shall hereafter enter on the performance of
the duties of his office, without taking or filing an
official oath, or executing or filing an official
undertaking, as required by the constitution, or by any
general or special law, his acts as such officers shall
be as valid and of as full force and effect as if such
oath had been duly executed and filed."
There is sufficient case law to uphold Section 15:
"The actions of a de facto officer are valid and binding
despite the fact that he has not taken his oath of
office" Matter of Delehanty (1952), and, "An official
duly elected, who has failed to take the oath of office,
has a sufficient right and title to the office to
perform official acts, and his acts are valid." Horton
v. Parsons (1885).
Poughkeepsie attorney David Sall, who successfully
defended Judge Pasquale Valentino in a Stanford case in
which the town claimed that the justice had not filed
his oath of office on time, essentially agreed with
Mann.
"The oath of office is deemed ministerial and not
substantive," said Sall. "It's a non-issue. "It's a
discipline issue and a misdemeanor. It's an
administrative matter between the government and the
individual officer," Sall said. As an example, Sall
related an incident with an assistant district attorney
he once worked with in New York City who prosecuted
cases for more than 20 years without an attorney¹s
license.
The
attorney had graduated from law school but never sat for
the bar exam.
"He was not licensed and he was prosecuting cases," said
Sall. "When it was exposed, people were coming forward
demanding to be released from jail and things like that,
but the court said Œno. )
"There was
no showing of prejudice," Sall explained. "In essence,
he did his job within the boundaries of the law and,
even though he could be reprimanded for a procedural
matter, the cases would stand." When asked, however, if
a case with a justice sitting illegally could be
challenged successfully, Sall said simply, "You can
challenge anything."
Whether the challenge is successful is another matter,
though. Sall said the constitutionality of most statutes
has been challenged at one time or another. Those cases
are usually heard and sent up to the state Appellate
Court for a ruling.
The opposite opinion
Taking the opposing viewpoint, however, Richard Wolf,
attorney with the firm of Lewis and Greer TC in
Poughkeepsie, said he would be obliged to challenge the
rulings of a judge who did not fulfill the terms of
Public Officer's Law. Wolf recently foiled an attempt by
the Hyde Park Republican Party to challenge the
extremely close election of David Steinberg, who ran as
a Democrat and defeated the Democratic incumbent, Alice
Mann, by a slim two-vote margin.
The county Board of Elections presided over the careful
re-counting of votes, and finally certified Steinberg as
the winner of one of two justice positions in Hyde Park
- almost two months after the November 2003 elections.
"A town justice cannot be a holdover," said Wolf, who
found case law to support his argument when he was
working on the Steinberg case. "The term of office of a
town justice is four years and ends Dec. 31 at midnight,
which means if his oath weren¹t filed by Jan. 2 the
office is deemed vacant," Wolf said.
Wolf¹s
concern in this case was that, if Steinberg were not
declared the winner in time to file his oath and
undertaking, his town justice seat could be declared
vacant. Wolf was determined that that not happen and
found case law to support his position. The law states:
"Upon the
failure to hold the required election to fill a vacancy
in an elective office, the person appointed to
temporarily fill the vacancy may not be a holdover
beyond Dec. 31 following the date on which the election
should have been held." (Opinion of the Attorney General
1967).
A holdover
is defined as, "One who is held over, especially one who
continues in office for a prolonged period." On the
challenge issue, though, Wolf sees it differently from
other attorneys. Even though case law on the issue has
not been thoroughly litigated, Wolf said he would
consider challenging the validity of any act by a
justice who had not fulfilled the requirements of
office. "Sure, I'd challenge it," Wolf said. "I'd be
delinquent not to."
Wolf lays out the issue this way: "Let¹s assume everyone
is really sloppy and doesn¹t file their oaths of office.
Then, they are not sitting properly," Wolf argued.
"It is certainly something a lawyer could raise
responsibly and it could alter the results of the case,"
he said. "It depends on the facts and it¹s open to
question. Would it apply civilly and criminally? It
really is a case-by-case kind of thing," Wolf said.
Mann agreed with all that a justice not filing his oath
properly is just a procedural matter. The only
legitimate way to challenge that judge's rulings on
those grounds is to appeal the decision within 30 days.
That¹s the time the law allows for appeal.
"You can take an appeal within the 30-day appeal time,"
Mann said. "If you don't, then the ruling stands. But
not filing your oath is not alone grounds for an
appeal," he argued.
Declaring a vacancy
If a vacancy is declared, there are two ways to fill it:
by appointment or by special election. In the case
brought against the Town of Rye assessor by Mann and
Mann, the town declared a vacancy and then the board
appointed a different person as assessor. "When the
assessor lost his case, the Appellate Division declared
a vacancy," said Monroe Mann. "Then we (the Town of Rye)
declared a vacancy and the town board passed a
resolution that the assessor didn¹t file his oath on
time and the town appointed someone else."
Case law
states:
"A vacancy in the office of village justice may be
filled by appointment of the village board for the
balance of the current official year and for the
remainder of the unexpired term at the general village
election, or at a special village election" (Opinion
of the Attorney General, Jan. 17, 1968).
Mann said any qualified voter over age 18 is eligible
for appointment to a public position. The local board
has the right to appoint someone to fill the declared
vacant seat and the person appointed would hold office
until the next regular election.
In the
case of either appointed or elected officials, Mann said
it's rare to hold a special election since it's not
necessary and the expense is prohibitive.
"There's no way for me to tell how much it would cost,
but it would certainly cost thousands of dollars," Mann
said. "You'd have to pay for the voting machines and the
personnel."
Sall
agreed that special elections are rare for the same
reason. They¹re too expensive. Sall said, however, a
special election might be justified if three members of
a town board were gone and there were no quorum, but
usually the town will appoint a successor. "For
instance, if a judge who's elected dies while in office,
someone else must be appointed until next year¹s
election," said Sall. "They could hold a special
election but it's unlikely a town would do it because it
is a great expense."
Election expenses locally
Mary Alex,
Town of Washington clerk, said a local election costs
$2,000, a sizeable sum for a small community. The town
has four machines of its own, but must pay for 16
inspectors at $75 each, as well as two custodians at the
same fee, who are responsible for the machines. It's
easy to do the math and figure: The bigger the town, the
bigger the expense. "It¹s expensive to hold an election
when less than 50% come out to vote," Alex said. "When I
took over the town clerk's position, I was appointed and
then I had to run for office at the next election."
The law
is, as usual, unclear in many of its ramifications. On
the one hand, it says that even if the justice is found
to be sitting illegally, his rulings still stand. Yet in
Waters v. Connor, 1957, the court held that once an
officer is no longer an incumbent (i.e. not holding
office legally), he's not a de facto officer. The
dictionary declares de facto as "existing in actual
fact, although not legally," and de jure means "by law."
This means if a justice hasn't filed the oath, the
office is automatically vacated under Public Officer¹s
Law 30. So, if the justice no longer holds the office de
facto, how can the rulings have validity? "There isn¹t
much case law on this and the statute doesn't say it
precisely," said Wolf. "But a town justice can't be a
holdover and, if you¹re not sitting lawfully, your
rulings can be challenged."
Finally, the responsibility of declaring a vacancy seems
to belong to the board or officer who made the
appointment, such as the town board: "If any officer
shall neglect, within the time required by law to take
and file an official oath, or execute and file an
official undertaking, the officer with whom or in whose
office such oath or undertaking is required to be filed,
shall forthwith give notice of such neglect to the
authority appointing such officer or if of an elective
officer, to the officer, board or body authorized to
fill a vacancy in such an office." (New York
Consolidated Law, Section 13).
The new county clerk
The satisfying result of reporting so extensively on
Public Officer's Law is that the filing of oaths of
office is being taken seriously. Colette LaFuente, the
new Dutchess county clerk, sent out a letter on Jan. 15
to all town and village justices advising them to file
their oaths of office and their undertakings (bonds)
with the county clerk. "I sent a letter out to all of my
towns," said LaFuente. "It says that county elected
officials must file with the county clerk¹s office."
The letter states in part: "I am asking that you also
file your oath of office with the county clerk. If you
desire, I, or one of my deputies, would be pleased to
administer the oath at the county clerk's office. I have
enclosed an oath of office form that should be completed
if you have not already filed one for you new term.
Please do so at your earliest convenience and before
Jan. 30, 2004."
One thing is clear, even the Dutchess County
Legislature, at its Jan. 6 reorganization meeting, has
been affected by this series of articles about the
requirements of the Public Officer's Law. At the end of
the meeting, when legislators were discussing filing the
Legislature's undertakings (insurance bonds), Jim
Hammond (R-Poughkeepsie) said to the body, "If you've
been reading the Taconic Press, I hope you have all
filed your oaths of office on time."
The above articles
appeared Thursday, Jan. 29, 2004 in the 8 newspapers of
Taconic Press of Dutchess County---Millbrook Round
Table, Pawling News Chronicle, Gazette Advertiser etal.
QUEENSBURY RESIDENT ASKS
TOWN BOARD TO PROBE
MONEY MISSING FROM COURT
News Release
January 29, 2004
When the coordinator of
the NYS Oaths Project appeared in Glens Falls City Court
on Dec. 31 after being ordered to surrender herself for
incarceration in a six year old case, the judge
announced she was being released on a new stay order but
that her bail money was missing.
On Monday night, (Jan. 26,
2004) Queensbury resident and businessman John Salvador
appeared before the Queensbury Town Board to demand that
the board investigate the matter and take steps to
protect the town’s taxpayers from any liability that may
result from the actions of the Queensbury Town Court as
a result of the missing funds.
Salvador also make it
a point to note that the uncle of Queensbury town
supervisor Daniel T. Stec is Paul Dusek, Warren County
attorney, in that the Warren County court system is also
involved in the matter.
According to former
Glens Falls City Justice David B. Krogmann, Queensbury
town justice Michael Muller has failed to turn over
$5,000 in bail money to the Glens Falls court as
required by state law.
The controversial
case had been transferred to Glens Falls in August,
2003, after Muller had disqualified himself in December,
2002, admitting he could not be impartial towards the
defendant, North Country Gazette editor/publisher June Maxam, citing a bias and prejudice.
Special prosecutor Gary
Hobbs had made four previous unsuccessful motions
for the transfer to the city court, finally succeeding
the fifth time after Montgomery County Judge Felix
Catena was assigned to the case last August with the
defense charging that Hobbs had engaged in the
prohibited practice of judge shopping.
Maxam, who has
spearheaded the statewide Oaths Project targeting the
state’s judiciary had had a three year old stay in a
1998 harassment case from Queensbury Town Court revoked
by Catena.
Muller, Krogmann and
Catena along with other town justices, Hobbs, Warren
County probation officer Mark Sager and Warren County
Sheriff Larry Cleveland, have allegedly failed to comply
with the New York State Constitution and state law in
filing their oath of office and/or undertakings and
have, as a matter of law, vacated their offices and
cannot perform the duties of that office or collect
compensation. Their titles to office have been
challenged by Maxam in three actions pending in Warren
County Supreme Court.
Catena had revoked Maxam’s stay on Sept. 29, 2003, on his own without the
issue being before him and ordered that Maxam surrender
herself to Krogmann for incarceration.
Although Maxam has
given notice of appeal in the 1998 charges which
originated in the Town of Chester, she has been unable
to file the appeal due to the court stenographer’s
two-year delay in providing the transcripts in violation
of three court orders. . When the transcripts were
finally produced in April, 2003, Maxam immediately
challenged them as being falsified and to date, no
hearing on the matter has been scheduled which in effect
thwarts Maxam’s right of appeal.
In revoking the stay,
Catena said that Muller had had no jurisdiction to
either issue the stay or set bail in the case in
February, 2001.
Dusek, Stec’s uncle,
is listed as the attorney of record representing one of
the defendants, former Warren County clerk Caryl Clark
in at least one of the oaths cases.
The law firm of
Miller, Mannix, Schachner and Hafner, legal counsel for
the town of Queensbury as well as the town of Chester,
is also representing the county in the proceeding in
which Muller and McNally are being challenged in their
claim to being town justice.
Additionally, she says
that Muller, Krogmann and Cleveland have never filed
their undertakings or bonds in the county clerk’s office
as required by law. Muller’s alleged failure to file
his undertaking could make him personally liable for the
missing bail money as the undertaking is an insurance
bond which protects the town and taxpayers against
missing funds and malfeasance in the court.
Cleveland, a long-time
opponent of the publisher, personally ordered Maxam’s
arrest in 1998 at a time when he hadn’t filed either his
oath of office or undertaking as undersheriff.
Maxam has filed three
Article 78 proceedings to compel three town clerks and
the Warren County Clerk to perform their statutory
duties in declaring vacancies in the offices being
challenged as the state Legislature has imposed the
strict penalty of removal from office if public
officers, including judges and the county sheriff and
the special prosecutor in the case, do not take and file
their oaths of office and undertaking, if required,
within 30 days of the commencement of their term.
Salavador’s remarks
before the Queensbury Town Board follow:
“My comments this evening
have to do with matters widely known to the corps of
local and Capital District news media, Warren County
administration including the uncle of our town
supervisor, as well as the local law enforcement and
court administrations. This is another of those family
secrets everyone knows and no one talks about
“Before I get interrupted
by Mr. Brewer with the usual “what has this got to do
with us’, I would like to reference those sections of
Town Law and the Uniform Justice Court Act which are
pertinent thus establishing a foundation for my
appearing here with the following information.
“As town supervisor,
Mr. Stec, one of your duties as specified in Section 29,
Paragraph 2 to Town Law wherein “you shall act as
treasurer of the town and shall demand, collect, receive
and have care and custody of monies belong to or due the
Town from every source, etc….’
“Section 31 of Town
Law….Powers and Duties of Town Justices---compels town
justices who are in fact officers of the town to, ‘keep
or cause to keep the records and dockets required by the
Uniform Justice Court Act and Section 31.1(b) at least
annually or as often as many be required, submit his
records and dockets to members of the Town Board for
examination and audit’.
“On December 31 of
last year, a Chestertown resident was ordered to appear
in Glens Falls City Court before City Court justice
David B. Krogmann because a three-year stay in a 1998
harassment case, which the Chestertown resident now has
on appeal, had been revoked by acting Warren County
judge Felix Catena. Judge Catena, a Montgomery County
Court judge, signed an order lifting the stay on a
motion from the Warren County Special Prosecutor, Mr.
Gary Hobbs.
“The Chestertown
resident had been ordered by Catena in September 2003,
to surrender to Krogmann to begin serving a 9 ½ month
jail sentence imposed in December 2000 as a result of
being found guilty by a jury in a trial held before
Queensbury Town Justice Michael Muller. The gentlemen of
this Board should know that I attended this trial and
have been following very closely this matter because of
my keen interest in justice.
“Upon being served with
notice in September, 2003, that the resident was to
begin serving the remaining 9 ½ months, the resident
began to seek the reinstatement of the stay revoked by
Judge Catena, again based on the pendency of an appeal.
The Chestertown resident had an extreme difficult in
finding a sitting judge who could and would order the
stay to continue. Repeated court denials over a 3-month
period caused City Court Judge Krogmann to finally order
on or about December 19 the Chestertown resident to
appeal on December 31, 2003. This was his last day of
his official duty as city court justice. Judge Krogmann
did not send the notice of appearance to the Chestertown
resident. Rather, he sent it to the resident’s assigned
counsel who was told by the same Judge Krogmann that
she, the resident’s counsel, could not represent the
resident because counsel had not been assigned in this
matter.
“Although the
Chestertown resident was never served with notice to
appear in city court on December 31, word did reach the
resident that Dec. 31 had been established as the
appearance date. Upon appearing before Judge Krogmann
with the expectation of being ordered to begin serving
the 9 ½ month remaining jail sentence, the Chestertown
resident was surprised to learn that acting Warren
County Court Judge Richard Giardino of Fulton County has
signed an order for a last minute stay and that the
Chestertown resident’s release on bail would continue
allowing an appeal of Queensbury town justice Muller’s
original sentencing of almost one year’s jail time in
this harassment case.
“At this point, with
Judge Giardino’s order entered in City Court, the Court
could have adjourned leaving everyone to continue
preparations for their chosen New Year’s Eve
festivities. Not so fast! Judge Krogmann apparently had
other intentions!
“Judge Krogmann made an
announcement from the bench that Queensbury Town Court
could not find the $5,000 bail proceeds that the
Chestertown resident had paid to the court for the
resident’s release in February, 2001, after serving 17
days in jail. Further, that the Queensbury Town Court
had not turned over the bail sum of $5,000 to the Glens
Falls City Court as required by the Uniform Justice
Court Act. WOW!
“Mr. Stec, as the
pre-eminent financial officer of this Town, you are
charged with ferreting a determination that these bail
monies have only been temporarily lost or misplaced and
that the $5,000, first collected in 2001, remains
somewhere within the Town Treasury. Do not fall into the
trap of disregarding this responsibility. It will not
go away. This is one of the reasons which led the
Appellate Division of State Supreme Court to remove
Victor Grant from the office of Town Supervisor of the
Town of Lake Luzerne (a case in which Grant was
represented by Krogmann and Gary Hobbs) A cause of
action outlined in the removal petition was his failure
to keep the funds of his town, including court funds,
intact as was reported by the State Comptroller to the
Warren County District Attorney’s Office.
“Your inquiry as to the
whereabouts of the $5,000 bail money should not be
sidetracked by the fact that Judges Catena, Krogmann and
Muller have been named in legal proceedings pending in
Warren County Court in which this Chestertown resident
is challenging the title to office of these and other
judges within the Fourth Judicial District as well as
the Warren County sheriff, Mr. Larry Cleveland, and the
special prosecutor in this case, Mr. Gary Hobbs, for
failure to timely and properly file their Oath of Office
and most importantly in the case of former judge Muller,
an undertaking known as a performance bond.
“Absent former judge
Muller’s filing of an Oath of Office and his failure to
post an undertaking (performance bond) has caused his
office to be vacated as a matter of law. He was
therefore without authority to set and collect the
$5,000 bail money which he apparently proceeded to lose!
“Had the former Judge
Muller posted an undertaking as required by law, the
town taxpayers would be indemnified for the last funds.
Without such indemnification, it now appears that the
former judge Muller is personally liable for keeping the
town treasury whole. Rest assured the Chestertown
resident still holds receipts for the bail amount of
$5,000.
“Your assurance is
hereby demanded that this matter of the missing $5,000
will be thoroughly and expeditiously pursued to a
solution which protects the town taxpayer. One question
for which I find no reasonable answer is why did Judge Krogmann even mention that former Judge Muller had lost
the bail money?
“A thorough reading and
study of all the actions of the Queensbury Town Court
leads me to a conclusion that the Chestertown resident
was being set up to forfeit the $5,000 bail money for
some technical procedural reason.
“Mr. Stec, these antics
are uncalled for in the land of the free.
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