NYS Legislature Concurs---No Oath, No Office; Amends Law
 

The verdict is in.

Town justices across the state were indeed illegally performing
judicial duties including sending people to jail without having
legal title to the office.

No oath, no office.

The Empire Journal and NYS Oaths Project have been successful in forcing the state Legislature and Office of Court Administration to admit that judges and justices across the state were in gross non- compliance of the law, prompting the Legislature to address the issue with new legislation to try and stave off a rash of litigation of challenges to decisions made by black robed imposters.

But it was all done very hush-hush.

A year ago this week, very quietly the New York State Legislature validated the work of the New York State Oaths Project, confirming not only that state law requires town and village justices to file their oaths of office and undertakings in three locations as the Oaths Project has advocated since 2003, but that if they hadn't done so not only did they vacate their office but that their actions performed before filing their official oath and/or undertaking were invalid.

If the justices were not in office legally, they were not entitled to collect a salary and benefits from the taxpayers.

It's not just a technicality as many had claimed.

On Aug. 17, 2004, Gov. George Pataki signed into law Chapter 406 of the Laws of 2004, legitimizing the work of the New York State Oaths Project which had exposed an epidemic of non-compliance in the state court system resulting in illegal judges and justices sitting in the state's courts, from the town courts all the way to the Court of Claims and Court of Appeals which gives serious doubt to the validity of their decisions.

In fact, it was found that even members of the judiciary who were members of the state's judicial watchdog agency, the NYS Commission on Judicial Conduct, were illegally in office, having vacated the position by operation of law for failing to comply with the state Constitution and statutes in not properly filing their oath and bond.

June Maxam, Oaths Project coordinator and co-publisher of The Empire Journal, was assisted in the project surveying the 62 counties of the state by Ginger Berlin, TEJ co-publisher; Geneice Hovak and Thomas Chandler of the NYS Tyranny Response Team.
http://www.trt-ny.org/The_NYS_Oaths_Project.htm and
http://www.judicialaccountability.org/articles/maximoathproject.htm

In June, 2004, TEJ, TRT and the NYS Constitution Party sponsored the Rally to Rein in the Judges on the steps of the Capitol in Albany. Maxam and Berlin also presented a Platform of Judicial Reform to Helene E. Weinstein, chairwoman of the Assembly Judiciary Committee and John A. DeFranciso, chairman of the Senate Judiciary Committee.

Earlier in 2004, Maxam, Berlin and Hovak hand delivered a 400- page report on the findings of the Oaths Project to the office of Attorney General Eliot Spitzer.

The survey revealed that over 90% of the state's judiciary were illegally in office, illegally plucking a paycheck and benefits from the taxpayers of New York totally without lawful authority with absolutely no jurisdiction to sit in judgment of individuals charged in violating the law, to send people to jail and make decisions that forever impacts the lives of others.

In fact, with the action taken a year ago by Pataki and the State Legislature, it has now been confirmed as advocated by the Oaths Project that prior to Aug. 17, 2004, official acts performed by judges and justices who had failed to file their official oath and/or undertaking were invalid as without proper title to the office, they could not claim to be de facto officers. One must first be a de jure officer before he can claim to be a de facto officer.

Maxam found that alarmingly most town and village justices in the state were acting unlawfully themselves, having failed to take and file both their oaths of office with the clerk of their county and in many cases, so are the county sheriffs and district attorneys as well as other public officers.

State law is very emphatic that public officers which include all town and village justices, city court judges and county judges must file their oaths of office and their surety bonds with the county clerk within 30 days of the commencement of their term or they have
vacated their office. No hearing is required, no judicial proceeding is necessary, the office is automatically vacant due to the officer's neglect or refusal to file. No excuses are accepted—no oath, no office.

The work of the Oaths Project was validated by the state Office of Court Administration when they issued memorandums in June and December, 2003, advising all town and village justices statewide that they had to file their oath of office and bond in the county clerk's office or else they would vacate their office. Most justices had failed to do so in violation of the Uniform Justice Court Act.

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.

Many of the justices and towns which they served insisted that filing their oath in the office of their municipal clerk and with OCA was sufficient.

Not so, said the state Legislature.

Public Officers Law 30 is emphatic that an office becomes vacant by operation of law if a public officer, including a judge, fails to file his properly file his oath and bond in the requisite places within 30 days of the beginning of his or her term.

Chapter 406 clarified the procedure for filing a town and village justice's oath and undertaking, affirming the Oaths Project's position that town justice must file in three places—the town or village clerk (Town Law 25); the county clerk (UJCA 104) and OCA (POL 3).

The new law left untouched the provisions of Public Officers Law 30 which provides for a vacancy in office after 30 days if the oath and undertaking are not properly filed.

Chapter 406 also clarified the common practice of municipalities procuring blanket bonds, also known as undertakings, as it pertains to town justices. New language was added to Town Law 25 stating that as of Aug. 17, 2004, town justices do not need to obtain an additional or separate undertaking where the town board has procured a blanket undertaking . If the town board does not procure a blanket undertaking---which the Oaths Project found was the case in many towns in the state, then each justice must procure their own undertakings which must then be properly filed in accordance with all three statutes---Town Law, UJCA and POL.

This position by the State Legislature again reaffirmed and supported the position of the Oaths Project.

The new law also amended Public Officers Law Section 15 "to validate a town justice's official acts performed before filing the official oath and/or undertaking".

The new law, Chapter 406, Laws of New York, 2004, which took effect Aug. 17, 2004, is as follows:

AN ACT to amend the town law and the public officers law, in relation to the duty of public officers to file an oath of office

Section 1. Section 25 of the town law, as amended by chapter 424 of the laws of 1994, amended to read as follows:

Section 25. Oaths of office and undertaking. Before he or she enters on the duties of the office, and within thirty days after the commencement of the term of office for which he or she is chosen, every town officer shall take and subscribe before an officer authorized by law to administer oaths in his or her county, the constitutional oath of office and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without compensation, and such oath shall be filed in the office of the town clerk. Each town justice shall also file such oath of office as provided pursuant to section one hundred four of the uniform justice court act with the county clerk and the office of court administration.

Each supervisor, town clerk, collector, receiver of taxes and assessments, town superintendent of highways, and such other officers and employees as the town board may require, before entering upon the duties of his or her office, and within thirty days after commencement of the term for which he or she is chosen, shall execute and file in the office of the clerk of the town, an official undertaking, conditioned for the faithful performance of his or her duties, in such form, in such sum and with such sureties as the town board shall direct and approve and such approval shall be indicated upon such undertaking. Unless the town board of his or her town has procured a blanket undertaking pursuant to subdivision two of section eleven of public officers law that covers him or her, each town justice shall also file such undertaking as provided by section one hundred four of the uniform justice court act with the county clerk.

Such undertaking shall not be recorded unless the town board of the town shall adopt a resolution so requiring and shall indicate such requirement upon such undertaking. The undertaking of the supervisor shall be further conditioned that he or she will and truly keep, pay over and account for all moneys and property, including any special district funds and the local school fund, if any, belonging to his town and coming into his or her hands as such supervisor. The undertaking of the receiver of taxes and assessments shall be further conditioned that he or she will well and truly keep, pay over and account for all moneys and property coming into his or her hands as such receiver of taxes and assessments, including all school district taxes, and such undertaking shall be in lieu of any other bond or undertaking
otherwise required by law in the collection of such school district taxes and the proper accounting therefore, except the undertaking required by sections twenty-five hundred six and twenty five hundred twenty-seven of the education law, and the trustees of every school district for which such receiver of taxes and assessments shall act as collector shall have and may exercise the same powers and remedies with respect to the official bond of the collector by the provisions of article forth- three of the education law or by the provisions of any other general or special law. The town board at any time may require any such officer or employee to file a new official undertaking for such sum and with such sureties as the board shall approve. In addition, the town board may require any town officer depositing funds or moneys of the town to file a depository bond indemnifying the town against any loss thereof. The town board may be resolution determine that any such undertaking or bond shall be executed by a surety company authorized to transact business in the state of New York and the expense thereof shall be a charge against the town. The filing of such oath and undertaking, when required, shall be deemed an acceptance of the office. The town clerk shall notify the town board in writing of the expiration of any undertaking or bond filed in his or her office pursuant to this section, at least thirty and not more than sixty days prior to the date of expiration thereof.

A neglect or an omission to take and file such oath, or to execute and file such undertaking within the time prescribed herein, except in the case of town justices (of the peace), shall be deemed a refusal to serve and the office may be filled as in case of vacancy. The undertaking of a town officer provided by this section shall be in addition to any undertaking otherwise required by law. (EDITOR'S NOTE: Town justices who fail to take and file their oath and/or bond within 30 days of the beginning of their term are governed by POL 30 and vacate their office by operation of law)

Chapter 2, Section 15 of the public officers law, as amended by chapter 680 of the laws of 1967, is amended to read as follows:

Section 15. Validation of official acts performed before filing official oath or undertaking. If a public officer, duly chosen, has heretofore entered, or shall hereafter enter on the performance of the duties of his or her office, without taking or filing an official oath, or executing or filing an official undertaking, as required by the constitution, section ten of this article, section twenty-five of the town law or section one hundred four of the uniform justice court act, or by any general or special law, his or her acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, notwithstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in the case of vacancy, or imposing any other forfeiture or penalty for omission to take or file any such oath, or to execute or file any such undertaking; but this section shall not otherwise affect any provision of any general or special law; declaring any such office vacant, or authorizing it t be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty, by reason of the failure to take or file any such oath or to execute or file any such undertaking and this section shall not relieve any such officer from criminal liability for entering on the discharge of his or her official duties without taking or filing such oath or executing or filing such undertaking in accordance with such provisions.