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FONDA---It's déjà vu in Montgomery County.
Judge Felix Catena's jurisdiction and title to office is being challenged.
Latham attorney Matthew Mann, attorney for Thomas DeVito whose conviction for child molestation was overturned in August by the Appellate Division, is arguing in state Supreme Court that Catena does not hold the office of Montgomery County court judge because he failed to properly file his oath of office within 30 days of the commencement of his term, creating a vacancy in the office ipso facto back in January, 2000.
Catena vacated the office by operation of law.
Oral arguments in the matter were heard last week but no decision has been rendered. Montgomery County district attorney James E. "Jeb" Conboy is trying to claim that Catena filed his oath on time but it was lost in the Montgomery County clerk's office for over three years because the oath on file wasn't time-stamped showing its receipt in the county clerk's office until Feb. 28, 2003.
The issue is being heard by state Supreme Court Joseph M. Sise. Sise is the former Montgomery County court judge who was elected to the office of state Supreme Court justice in 1999 and Catena succeeded him in the county judgeship.
As they say, been there done that as Sise has had the issue of Catena's oath before him as part of the NYS Oath Project litigation brought in 2004 and sidestepped it.
Sise arbitrarily dismissed the oaths litigation, totally misstated facts in the matters and based his decision non-existent law.
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".
There are simply no nunc pro tunc, or belated, filings allowed. 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.
June Maxam, coordinator of the NYS Oaths Project and publisher of The North Country Gazette, says there are 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.
This past August, the Appellate Division of state Supreme Court reversed the conviction of DeVito, 39, a former Amsterdam day care operator who had been found guilty in 2003 of two counts of first degree course of sexual conduct against a child and two counts of endangering the welfare of a child with two children in his care younger than age 11. The appeals court ordered a new trial, citing egregious misconduct by Conboy and improper jury instructions by Montgomery County Court Judge Catena. http://www.northcountrygazette.org/articles/102105CatenaRecusal.html
The court also found that Catena had violated the rights of DeVito during the trial by failing to conduct a required hearing, depriving DeVito of his due process right to a fair trial. Catena had sentenced him to 50-years in state prison after DeVito was found guilty in 2003 of molesting two boys who had been left in his care.
Mann doesn't believe his client can get a fair trial before Catena and he asked the Appellate Division for a change of venue.
Last week, the mid-level appeals court denied the change of venue motion and ordered that the retrial be held in Montgomery County before Catena.
Mann, DeVito's attorney, has filed a motion seeking dismissal of the indictment against DeVito because Catena is not legally in office and does not have jurisdiction in the case. Mann says that Catena failed to file his oath of office within the time prescribed by law and therefore vacated the office. Mann says that DeVito did not receive a trial before a lawful judge.
As coordinator of the NYS Oaths Project, in April, 2004, Maxam filed a writ of prohibition and a writ of mandamus to enjoin Catena from proceeding in hearing an appeal of a conviction against her obtained in Queensbury Court in 2000. (Catena was mysteriously removed from hearing the appeal in December, 2004 and the convictions were subsequently reversed and vacated on the grounds that Maxam's constitutional rights had been violated)
The NYS Oaths Project, a survey of NY's 62 counties, was undertaken with the support of the NYS Tyranny Response Team during 2003 and 2004.
As an acting Supreme Court justice in the 2004 oaths litigation, Sise was assigned the three separate proceedings. The action against Catena maintained that Catena had no jurisidiction to act in any manner in the Maxam case, or in any case he had handled after Jan. 31, 2000, because he had never filed his certificate of election to the position of county court judge and therefore, by law, he has no title to the office and cannot perform the duties as he has never qualified for the office.
Judges, even Felix Catena, have to comply with the law.
Catena called the Oaths Project "a sham", however, the state Legislature concurred with the position of Maxam and the NYS Oaths Project and passed new legislation in August, 2004, shortly after Sise's dismissal, "clarifying" the issue and confirming that town and village justices must comply with the Uniform Justice Court Act as well as Public Officers Law and Town Law in the filing of their oaths and bonds. No oath, no office.
During June, 2003, Helene Bartone, Montgomery County clerk, provided copies of the oaths of office for various judicial officers of Montgomery County including that of Catena.
According to the oath provided, Catena's term began Jan. 1, 2000, but the clerk's office did not receive his oath in the county clerk's office as required until Feb. 28, 2003, certainly more than 30 days after the commencement of the term. There can be no retroactive filings and certainly not more than three years after the commencement of his term. By operation of law, Felix Catena does not hold legal title to the office of county court judge.
Public Officers Law Section 2 establishes the office of county court judge to be that of a local officer and as such, Catena was subject to the provisions of Public Officers Law 10 and County Law 402 which require that he file his oath in the county clerk's office within 30 days of the commencement of his term. He failed to do so thus violated the law and vacated the office on Feb. 1, 2000 as per Public Officers Law 30(1)(h), Maxam says.
Having vacated the office by operation of law, Catena does not hold title to the office of county court judge. Without title, he is not a de jure officer and therefore cannot claim to be a de facto officer which would protect all of his prior rulings. One must first be a de jure officer in order to be a de facto officer. Maxam says that by law Catena is neither and therefore had no jurisdiction to act as a county court judge after Jan. 31, 2000. Without jurisdiction, all actions taken by him since that date are invalid.
And, in the absence of jurisdiction, Catena has no judicial immunity.
Without lawful authority, Catena has not acted under the color of law. He is a usurper in the office.
By law, the county clerk was required in January, 2000 to declare the vacancy in the office of county court judge and give the required notice of vacancy to the governor within 10 days. She didn't.
Not only didn't she perform her statutory duties, but now Jeb Conboy is absurdly claiming that Catena filed his oath in the county clerk's office in a timely manner---it's just that they lost it in the office for three years and didn't find it until Feb. 28, 2003 when they time stamped it and filed it. There is no proof to support Conboy's contention. As of yet, Catena and the clerks on the county clerk's office have not been deposed or submitted sworn affidavits to the court.
Mann has indicated that the courts have consistently held that late filing does not cure the vacancy created by the failure to timely file an oath of office and both case law and opinions by the state comptroller and attorney general concur.
Sise has firsthand knowledge of the oath of office issue.
On April, 28, 1998, former state Attorney General Dennis Vacco issued a formal opinion to Jonathan Lippman, chief administrative judge of the state's Unified Court System, also known as the Office of Court Administration.
Legal counsel from OCA had sought a formal opinion from the Attorney General whether Sise could legally assume the office of Supreme Court justice is he was elected and filed his oath of office between the 24th and 30th day following the commencement of his term on Jan. 1, 1999.
A person may serve as justice of the Supreme Court if he or she meets constitutional or statutory qualifications within 30 days of the commencement of the term of office and timely files his oath of office, the Attorney General ruled.
In the 1998 opinion, Vacco wrote that "before public officers, including justices of the Supreme Court, undertake the duties of their offices they must take the required oath of office" and he cited Article XIII, Section 1 of the New York State Constitution. Vacco opined that "the oath for an elective officer must be filed within 30 days of commencement of his or her term of office. Public Officers Law 30(1)(h). Therefore, if Judge Sise is elected and files his oath of office between the 24th and 30th day of January, 1999, he will meet all legal requirements for candidacy and to hold the office of Supreme Court justice."
The statutory provisions relied on by the attorney general in his opinion are the same ones cited by Maxam as petitioner in the three then pending proceedings before Sise in 2003 dealing with the oath of office and jurisdictional issues. 11-28-05
© 2005 North
Country Gazette
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