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The Batavian

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

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