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The Batavian considers appeal after judge rules against request for transcript of Family Court motion

By Mike Pettinella

An attorney representing The Batavian is leaving the door open for an appeal after a Niagara County Family Court justice ruled against the online publication’s request for a transcript of a portion of a Genesee County Family Court hearing that dealt with a potential conflict of interest situation involving current Batavia City Court Judge Durin Rogers.

“We respectfully disagree with the Court’s decision and are considering our options for appeal,” said Heather E. Murray, managing attorney for the Local Journalism Project at the Cornell Law School First Amendment Clinic.

The Dec. 24 ruling by Niagara County Family Court Judge Erin P. DeLabio pertains to a hearing on Nov. 26, 2019 when DeLabio closed her courtroom to reporter Howard Owens, publisher of The Batavian.

After he was locked out of the hearing, Owens sought to obtain a transcript as he believed the public’s right to know outweighed any other factors since Rogers, representing the Genesee County Attorney’s office, also was serving as a sitting, part-time City Court judge while a defendant in the Family Court matter also was facing criminal charges in City Court.

Rogers was elected as the full-time City Court judge in November 2019 and sworn in Dec. 20, 2019.

Attorney Thomas Burns, who was representing a woman accused of hitting her child with an object, filed a motion alleging Rogers’ conflict of interest as the latter had access to City Court documents and was able to interact with other members of the county’s criminal justice system.

DeLabio, in her ruling, cited “confidentiality” concerns that outweighed The Batavian’s contention – as outlined in its “moving papers” – that the public has a right to know if an elected official is acting in an inappropriate manner.

The judge also wrote that it was “disconcerting” that the publication’s motion “was never served upon the very attorney (Rogers) who is the subject of the motion” and … as such, “service of this motion was defective.”

Owens said that DeLabio’s ruling has not changed The Batavian’s position on this issue.

His complete statement follows:

“As a local news publisher, I believe one of my roles in the community is to stand up for the First Amendment and public access to the public’s business, whether that’s through the state’s open meeting laws, public information laws, or the state’s provisions for ensuring courtrooms and court documents remain open to the public.

“Democracy does not work if the government can operate in secret.

“All of New York’s courts, including Family Court, are open to the public and the law is very clear that a courtroom can only be closed based on specific findings based on supporting evidence revealed in an open hearing on the matter.

“It’s been our position all along that Judge Erin DeLabio failed to follow the law when she closed her courtroom on Nov. 26, 2019. It is undisputed that the judge did not hold an opening hearing when she closed her courtroom.

“Since the portion of the hearing The Batavian sought to monitor involved an accusation made in court documents of a possible conflict of interest involving a public official, one who is no less than an officer of the court, we felt this matter was of significant public concern.

“And though this hearing happened more than a year ago, The Batavian’s position on this issue has not changed. With the help of the Cornell First Amendment Clinic, we appealed DeLabio’s ruling and felt we made a strong case.

“All we requested was a redacted transcript (to protect the privacy of the family involved in the case) so we were surprised and disappointed in DeLabio’s decision. As to her position regarding notice of service of Durin Rogers, this is a technical legal issue we will leave to our attorneys to address in our appeal. 

“Most troubling in her ruling is her statement, ‘The motion was heard AFTER (her emphasis) the local elections. Reporting anything that the (sic) Batavian thinks is relevant to the election after the fact, would have no impact on the election …’”

“Judge DeLabio is not employed by The Batavian. She is not an editor. She is a judge. It is not her place to pass editorial judgements on what is newsworthy.

“The public concern of this case has little to do with the election and everything to do with the fact that Durin Rogers is a public official in a position of public trust. This is why we reported on the issue in the first place and continue to maintain interest in the issue until it is publicly resolved. The public has a right to be informed on all matters involving a public official being accused of a conflict of interest. It is not incumbent upon Judge DeLabio to determine what is editorially relevant and her statement in the ruling amounts to prior restraint.

“We are appealing this ruling for the very fact that until the transcript is released, it remains a matter of public concern and is therefore newsworthy. It is newsworthy today and it will remain newsworthy in six months or two years, or however long it takes for justice to be served.

“We wish to see New York’s laws ensuring open courtrooms protected for the good of all citizens of New York.”

Previously:

Motion asks deputy county attorney to be removed from case over alleged conflict of interest

Judge blocks press from covering conflict-of-interest motion

It's World Press Freedom Day

By Billie Owens

Local news sources are vital to the safety, security and knowledge of our communities, never more so than in these difficult times. We encourage you to find a local news organization you trust and support it at:   nytimes.com/supportlocaljournalism. #worldpressfreedomday

A community comes together to support the sons of Douglas Mess

By Julia Ferrini

Similar sentiments echoed from family, friends and the community with respect to Douglas Mess. 

“He was an amazing guy.” 

“A big teddy bear.” 

“He would do anything for anyone.” 

“He loved family.” 

“He was an excellent mechanic.”

A spaghetti dinner and raffle was held Saturday to help Mess’s four sons, Douglas, Matthew, Michael, and James. The four men lost both their parents in an incident that shook the Attica community.

“It’s nice to see the community coming together for this,” said event organizer Jackie Murphy. “But by the same token, this shouldn’t have had to happen.”

The fundraiser was held at the Alexander Firemen’s Recreation Center, Alexander. All proceeds go to the brothers to help with living expenses. According to Murphy, the support from the community has been overwhelming. 

“Everything has been donated by community members and local businesses,” Murphy said. “The response has been wonderful, from setting up this event to just asking ‘how ya doing?’ It’s just been amazing.”

“I wasn’t expecting the response we got,” said Gina Olszewski, Matthew’s girlfriend. “The support from the community is awesome. It’s such a horrible situation and it’s nice to have the support we’ve received.”

Tom Gadd worked with Doug for 14 years at Alexander Equipment and viewed the man like a brother.

“He was just an amazing guy; a great guy. That sums it up right there,” Gadd said.

“He’s been proud to see the support,” Olszewski said.

According to the elder Mess’s son Doug, he was a “shop man dictionary.”

Michael and James describe their father as happy and caring.

Douglas Mess was found murdered April 20 on the farm he and his wife of 30 years owned in Attica. Charlene Mess is charged with his murder and is currently being held in the Wyoming County Jail in lieu of $1 million cash bail or $2 million bond. She is due in court Aug. 6.

“We are extremely grateful,” James said. “There has been lots of support from an extremely caring community.”

See related: Murder of Douglas Mess a big loss for Baskin Livestock; Charlene Mess pled not guilty in the murder of Douglas Mess

Le Roy business features art, coffee and community touch

By Julia Ferrini

 

New York-based artist Jim Hodges is known for his singular ability to infuse emotion and narrative into the objects of daily life. He once said, “When I make art, I think about its ability to connect with others, to bring them into the process." This precept is the driving force behind a new art gallery in Le Roy.

The conception of local artist and photographer Jim DeLooze, 58 On Main will come to fruition on June 16 when it officially opens.

“I own the building and am a professional photographer,” said the 30-year Le Royan. “I wanted to do something with photography and teaching, so opening the gallery came together as a culmination of ideas.”

There will be an art gallery, coffee shop, green screen photography studio, and a photography computer lab. There is also plenty of room to accommodate the classes DeLooze would like to offer.

“To be successful, we need to give the community what it wants,” DeLooze said.

His photography career began at Kodak in Rochester directly after high school. Later, he opened his own photography studio on Main Street, Le Roy, which catered to weddings and portrait work. He says he enjoys shooting anything to do with people.

After closing that business, his interest in art remained and led to a position at Le Roy's Jell-O Gallery Museum. It's there he began “kicking around the idea of opening a studio.” 

The art gallery is open to local artists and artisans to showcase their work. It offers a permanent home for as long as the artist would like to rent the space. And with the artist’s permission, 58 On Main will produce photographic reproductions for sale. Since there are no exclusive rights, the artist is welcome to display their work in other venues.

“The fees to display and sell an artist’s work (in 58 On Main) is very inexpensive by way of comparison of larger galleries. Each wire will hold up to 30 pounds of multiple pieces, while heavier work, a piece that can weigh up to 60 pounds, will use two wires for the charge of one.”

Artists can also access 58 On Main's Web site and electronic advertising.

The coffee shop, Barista’s, is natural accompaniment for an art gallery. D&R Depot restaurant co-owner Sean Valdes will run it and the menu will include gourmet coffee, espresso, tea, pastry, scones, and light lunches -- soups, salad and sandwiches.

Friday nights will be special at Barista's. Planned are "Wine and Dessert"; "Social Painting" -- where participants are given two-hour instruction in painting; "Music Night" featuring musicians;  "Travelogue" - for people to share their travels near or far; poetry readings, game night and more.

“We are a family friendly atmosphere," DeLooze said. "We want to give the community an option for their Friday nights.”

While the coffee shop has its individual name included with the business, the nomenclature for all the businesses at 58 Main Street, Le Roy, is 58 On Main.

“There are a number of businesses under one roof, so we decided utilizing the physical address (58 Main Street) as the main name for the gallery," DeLooze said. "We wanted to keep it simple and catchy.”

Saturday morning photography classes are also planned.

“We will be offering anything from photography basics to using Photoshop and HDR (high-density resolution) photography. It’s here for the community. Input is both welcomed and encouraged. We’d like to know what the community is interested in learning.”

58 On Main would also like the community to become actively involved and offer courses on their interests and expertise. DeLooze says drawing a diversified crowd and truly opening the gallery up to the community's interests is paramount for success.

“There will be a little bit of everything for people to enjoy. It’s a great place for parents to stop in while waiting for their child to get out of practice.”

58 On Main is seeking artists and artisans interested in displaying their work in the gallery. It is also working with the Jell-O Gallery Museum to put day-tour packages together to promote local businesses on Main Street.

For more information on 58 on Main visit their Web site at www.58onmain.com or contact DeLooze at jim@delooze.com or 585-768-2402.

Posting will be light today

By Billie Owens

Good morning, readers of The Batavian, posting will be light today because Howard is having medical tests done. Alecia Kaus will monitor the scanner for us. Regular posting will resume tommorrow.

clarification

By C. M. Barons

I made a hasty remark aimed at a lead sentence I judged troublesome.

I would not characterize Howard as an unskilled writer.  I've witnessed his work when it exhibits command of language.

Howard has demonstrated often that his writing ability is excellent.  In fact he has done some superlative investigative pieces and propelled a self-conceived project (The Batavian) into a respectable web presence.

The Batavian has an excellent editor, namely  Billie, who nails her grammar and sentence structure consistently.

 

Responding To Howard's "The Batavian Is An Open Forum"

By Robert Harding

Earlier today, Howard authored a post entitled, "The Batavian is an open forum" that discussed, in my view anyway, the current state of The Batavian and the evolution of The Batavian. It was an interesting take by Howard, but I think he missed the mark in a few areas.

I have been a fan of this blog since its inception. It is because of The Batavian that the Daily News (who had long been without a website) decided to join the rest of the newspaper world in introducing a website to the fold. The Batavian also proved to be key during the 2008 elections - a perfect year for a blog such as this one to start and get off the ground running.

But I do take issue with a few things Howard said in his post. In discussing the political leanings of readers and contributors here at The Batavian, Howard said the following: 

There was a time when Republicans thought The Batavian was hostile to their positions. Many of the original members of the site were active in local Democratic politics, and I think Philip Anselmo leaned a bit to the liberal side. 

While I espoused a localist-libertarian position, I was (and am) non-partisan.

In this environment, Republicans didn't see many of their ideas being put forward and thought their viewpoints would be unwelcome.

Now, I'm hearing the Democrats are thinking of The Batavian, especially since Philip left,  is hostile to their party and positions.  Nothing could be further from the truth.  Naturally, I'm going to be critical of big government programs being pushed by Sen. Kirsten Gillibrand or more taxes and spending from David Paterson, but that's because as  a libertarian, I think those are bad policies. It has nothing to do with party affiliation.  I'm critical of Republicans when they espouse more government solutions to problems.

I don't know how accurate it is to say that Republicans "thought The Batavian was hostile to their positions." Let's be real: The Republicans weren't reading. There were a few Republican contributors, including Genesee County Legislator Jerome Grasso, but the Republicans weren't represented here. It is one thing to claim hostility. It's another thing to be not active. The Republicans weren't active. The Democrats took advantage of having a new medium and did what we do best: We used it. We didn't see it as something foreign.

The Republicans weren't posting any of their ideas. And to say that their viewpoints would be unwelcome is a joke. If they aren't posting and aren't trying to post, how can we make such a statement and claim it as fact?

I'm not sure where Howard gets his facts about Democrats labeling this blog as "hostile to their party and positions." That word "hostile" is getting tossed around rather liberally (no pun intended) and I'm not sure where the perception of hostility is derived. I think the belief is that Howard has tried a little too hard to try and erase and previous views that this blog was friendly to Democrats. He might not agree with that view, but that is something I have noticed over the last several months and I know I'm not the only one who shares that view. Does that mean we believe that this blog is anti-Democrats as a result? No.

It is no secret that Democrats/progressives have had great success in online organizing and with the blogosphere. The Republicans/conservatives haven't had the same success. If that is what they consider "hostile", then maybe they need to be more proactive than reactive. I recall Grasso mentioning this same point. He called on his Republican friends to contribute. Apparently, instead of showing up, they chose to stew about it and allege "hostility."

Unless a blog has a certain identity (progressive, conservative, libertarian, socialist, etc.), then there really isn't a need to worry about who is utilizing the blog more than others. If there are more conservatives utilizing a blog like The Batavian, all the power to them. The Batavian isn't targeting one ideology over another. So there is no reason to try so hard to balance things out, nor is it necessary to try and debunk any claims by one party or another about one side being favored over another.

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