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 9^th 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.