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First Amendment question left unresolved in plea deal for Batavia mother accused of harassing school officials

By Howard B. Owens

A Batavia mother charged with harassment in the second degree for sending a series of angry emails, including one with profanity, to City School officials will not need to admit to any wrongdoing under terms of a plea agreement reached in City Court on Wednesday.

Kate Long, 39, accepted an offer from the District Attorney's Office to get the charge against her dismissed if she can avoid any additional criminal charges over the next six months.

That would wipe the slate clean, as if she was never charged in the first place. It would also mean no legal challenge to her arrest, which could have very well violated her First Amendment rights to free speech and petitioning the government for a redress of grievances.

It makes perfect sense that Long would accept the plea offer, said Constitutional scholar Jared Carter, but the plea could also potentially mean government agencies remain free to use the harassment 2nd statute to silence critics.

"My initial reaction, from a pure First Amendment perspective, is this was always a troubling case based on the facts as I understand them," Carter told The Batavian on Wednesday evening. "On one hand, there is some vindication of the First Amendment on the basis of the dismissal.  Of course, you don't have a ruling from a court saying this arrest was unconstitutional, so does the school district or law enforcement or whatever (agency) have any check on power? Can they again do what they want to do, and the short answer is, 'Yes.'  That's the unfortunate aspect of all of this."

Carter is counsel with the Cornell Law School First Amendment Clinic, based in Ithaca, and a professor of Law at Vermont Law and Graduate School. Carter specializes in First Amendment cases.

Long, a mother of three children, was issued a summons in November and charged with a single count of harassment in the second degree, a violation of Penal Law 240.26(3), which reads:

He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

The charge was based on a criminal complaint filed with Batavia PD by John Marucci, president of the Board of Education for the Batavia City School District.

The complaint cited a Nov. 8 email that contained profanity and noted that Long had sent a series of emails over a short period of time complaining about how her son's Spanish class at Batavia Middle School was being handled.

In order to comment on the charge for an article The Batavian published on Dec. 18, Carter reviewed the emails and the charging documents and offered the opinion that Long's conduct would likely be viewed as protected speech by any court asked to rule on the constitutionality of her arrest. 

"They're (prosecutors) skating on very thin constitutional ice if any ice at all," Carter told The Batavian in December when discussing the arrest and prosecution of Long. "The First Amendment robustly protects Freedom of Speech, and the freedom to criticize government action. That would include criticizing the way that a school handles itself."

In 2014, the state's aggravated harassment statute, which contained similar language but specifically targeted speech, was ruled unconstitutional.  The state Legislature changed that law the following year but left open the ability of police to arrest individuals engaged in speech that is deemed offensive conduct under the harassment 2nd statute. 

Buffalo attorney Tom Trbovich, retained by Long to represent her in City Court, told The Batavian after her initial court appearance that he wasn't likely to mount a constitutional challenge to her arrest, suggesting an easier resolution could be negotiated with the District Attorney's Office.

"I think this was a good resolution," Trbovich said after court on Wednesday. "Right now, we were circling the wagons and making sure that nothing goes wrong. And hopefully, this will be taken care of in six months as if it never happened."

Asked if he thought his client committed a crime, Trbovich offered a slight smile and said, "I don't want to antagonize the office. I got a good disposition."

There are no conditions on Long over the next six months other than she avoid a criminal conviction, though Trbovich offered in court that Long would agree to have no further contact with school employees at Batavia Middle School.

Her son has transferred to Notre Dame, and her husband would have remained free to talk with school officials.

Judge Durin Rogers rejected the condition because there are typically no additional conditions on an adjournment in contemplation of dismissal.

Carter said Trbovich getting a potential dismissal of the charge for his client was understandable.

"Criminal defense attorneys try to get the best outcome for their clients by keeping them out of harm's way," Carter said. "It totally makes sense to tread carefully, to get the best outcome for his client as he can. I totally get that. I'm not second-guessing that at all."

But, he said, the First Amendment is still in play for Long if she wishes to pursue it as a civil matter, meaning, filing a lawsuit against the school district or the police department, if she feels her arrest did her harm or that it has a chilling effect on her future speech.  The fact she offered to have no future contact with the school, Carter indicated, suggests her arrest does indicate she is willing to self-censor out of fear of repercussion.

"You have to have some sort of injury to get in the courthouse door," Carter said. "Would a chilling effect be enough if she wanted to bring a First Amendment case? It could be injury enough to get in the courthouse door."

Batavia native, experienced local attorney become's city's new part-time judge

By Howard B. Owens
andrea clattenburg batavia city court oath of office
Judge Andrea Clattenburg sits at the bench Wednesday n Batavia City Court for the first time after taking the oath of office as part-time City Court Justice.
Photo by Howard Owens

Andrea Clattenburg, whose legal career has taken her from a prosecutor's position in the County Attorney's Office to a defense attorney position in the Public Defender's Office, is now a part-time City Court judge.

Clattenburg took the oath of office Wednesday in Batavia City Court in a courtroom packed with family, friends, fellow attorneys, elected officials, and assorted dignitaries.

City Council appointed Clattenburg to the position in August following the resignation of Thomas Burns.  City Court judges, state-mandated positions, are elected to six-year terms. Clattenburg will be on an election ballot in November 2026, prior to the expiration of the term Burns vacated. That term expires on Dec. 31, 2026.

Full-time City Court Judge Durin Rogers administered the oath.

"City courts were once described to me as the emergency room or the emergency department," Rogers said. "Many times you don't know what you're gonna have. In City Court, you'd have a traditional vehicle and traffic matter. And for all my former colleagues and for the attorneys, and obviously the judges, you know, that you could have a very serious criminal matter brought into court during vehicle and traffic or during housing, and you have to be able to switch hats. And so you need a keen sense of triage. You need a keen sense of knowledge. And, most importantly, I think judicial temperament, and I'm very excited that we have somebody of Judge Clattenburg's caliber to join us on this team."

Clattenburg thanked her colleagues and family for their support over the years, particularly her father James Clattenburg and her husband Michael Szymczak.

"I grew up in Batavia," Clattenburg said. "I've lived here my entire life. I've worked in Genesee County, in Batavia, my entire life, and I am so thrilled to be able to serve the city of Batavia in this capacity."

During introductions by Rogers, the two newest members of the court staff were also introduced.  Kelly Randle is the new chief clerk and Amy VanSplunder is the new deputy clerk.

andrea clattenburg batavia city court oath of office
City Court Judge Durin Rogers administers the Oath of Office to Andrea Clattenburg, the city's new part-time judge. Holding the Bible is her husband, Michael Szymczak, and to her right are her parents James and Marianne Clattenburg.
Photo by Howard Owens
andrea clattenburg batavia city court oath of office
Marianne Clattenburg, a member of the Genesee County Legislature, sits in the front row of the City Court gallery with other members of the Clattenburg family.
Photo by Howard Owens.
andrea clattenburg batavia city court oath of office
Judge Durin Rogers.
Photo by Howard Owens
andrea clattenburg batavia city court oath of office
8th District Administrative Judge Kevin Carter, center.
Photo by Howard Owens
andrea clattenburg batavia city court oath of office
Rogers puts her judge's robe on Clattenburg for the first time.
Photo by Howard Owens
andrea clattenburg batavia city court oath of office
Judge Durin Rogers, Judge Kevin Carter, 8th District Administrative Judge, Judge Andrea Clattenburg, JaHarr S. Pridgen, City Courts' supervising judge, Judge Melissa Lightcap Cianfrini, County Court, and Judge Tom Williams, Family Court.
Photo by Howard Owens.

City Council appoints new part-time judge to fill remaining term

By Joanne Beck
andrea clattenburg
Andrea Clattenburg

City Council approved a part-time City Court judge Monday to fill the remaining term of Tom Burns, who retired from his post with less than three of his six years served.

Andrea Clattenburg, a Genesee County assistant public defender since 2021, will now be the part-time City Court judge, a role established per the Uniform City Court Act. That act provides for the appointment of a City Court judge who acts in the temporary absence or inability of the city judge to exercise the power of said judge. 

The part-time judge will serve a term of six years, which in this case will expire on Dec. 31, 2026, the end of the original term of Burns.

Upon his retirement, Burns told The Batavian that there weren’t enough cases flowing through City Court to justify his time there, so he stepped down effective July 14. 

City Council approved Clattenburg by a vote of 8 to 1, with Bob Bialkowski, Rich Richmond, Eugene Jankowski Jr., Paul Viele, Kathy Briggs, Al McGinnis, Kathy Briggs and Tammy Schmidt voting yes, and John Canale abstaining because of his “close personal ties” to the candidate.

The Batavian asked Jankowski for his thoughts about filling a position that Burns had left because there wasn’t enough work to warrant the job. 

“In my research, my research has learned that the court is pretty much backed up with cases. So I have no idea what Mr. Burns, his comment was about. I'm not familiar with it. I do know that after looking into it, as part of this process, there is a definite need for many small claims actions, civil actions and such. And that's what a lot of the part-time job does, as well as overflow and recruitment. When the full-time judge has recused himself, then those criminal cases are passed on to the part-time judge. So from what they tell me, there are standards, 90-day standards for these cases that need to be resolved. That's a state recommendation, and they really pay attention to it,” Jankowski said. “So given that short timeline, there's a lot of work over there, and they need the extra help. And plus, the part-time position, if I'm not mistaken, is required per the state. So we're gonna have it one way or another. And I believe we will make good use of it over there.”

The part-time City Court judge is paid by the state, though the position is appointed by City Council. Durin Rogers is the current full-time City Court judge. He is also paid by the state but is an elected position.

The minimum qualifications for the part-time judge require candidates to be an attorney admitted to practice law in the State of New York for at least five (5) years as of the date he or she commences the duties of the office and must be a resident of the City of Batavia. 

Clattenburg is a Genesee County assistant public defender who received a Leadership Achievement Award from Western Michigan University Cooley Law School, where she obtained her Juris Doctorate in general law practice in 2014.

She lists arts and culture, children, education, poverty alleviation and social services as her causes of interest. 

Tom Burns steps down as part-time judge, cites low City Court case volume, as City seeks new judge

By Howard B. Owens
Attorney Thomas A. Burns in December 2021, speaking at the retirement dinner of former District Attorney Lawrence Friedman.
Photo by Howard Owens.

There aren't enough cases flowing through City Court, especially now that the Centralized Arraignment Part Court is up and running, said Tom Burns, so he stepped down as of July 14 as the part-time City Court judge.

Ironically, perhaps, Burns was a leader in establishing the CAP court.

"I'm proud of the fact that I was involved in the development of the Centralized Arraignment Part Court," Burns told The Batavian. "That was a huge accomplishment.  It relieves the City Court judges of 24/7 arraignment responsibility."

But with the lower case volume in City Court, Burns is turning his attention back to his full-time job as a defense attorney.

"After CAP court was implemented, the low volume in City Court, from my perspective, does not justify my continued involvement there. I just don’t feel the need to continue in the position because the demand isn’t there for it."

Burns has been on the City Court bench for 2 1/2 years, and in 2022, the part-time position, which at times amounted to eight hours a week, paid $50,000.

The part-time City Court judge is paid by the state, though the position is appointed by City Council.

Durin Rogers is the current full-time City Court judge, also paid by the state and an elected position, and earned $192,920 in 2022.

"I loved my service to the community and the chance to serve the community," Burns said.

The City of Batavia also released the following press release seeking to fill the part-time City Court judge position:

The City Council is seeking to fill a part-time City Court Judge position.  This position is appointed by City Council to serve the remainder of a term ending 12/31/26.

Minimum qualifications require candidates to be an attorney admitted to practice law in the State of New York for at least five (5) years as of the date he or she commences the duties of the office and must be a resident of the City of Batavia. 

All interested candidates, please submit a letter of interest and resume to: 

City Court Judge
Attn: City Council President Eugene Jankowski, Jr.
One Batavia City Centre
Batavia, New York 14020

Resumes and letters of interest are due by 4:30 PM on Friday, Aug. 4. 2023.  Please provide hard copies of your materials directly to the City Manager’s office.

County and City Court on emergency operations for Dec. 23, 2022

By Press Release

Press release:

Good afternoon, please be advised that Judge Carter in consultation with Judge St. George, has authorized a shift to emergency weather operations for all courts in Genesee County. Due to persistent weather conditions, the Genesee County Courts listed will be conducting emergency operations virtually on Friday, December 23, 2022. Physical access to the Genesee County Courts facilities will be curtailed. With the exception of criminal court arraignments and any emergency criminal matters, emergency matters will be handled virtually.

Emergency applications may be heard virtually by contacting the Courts listed below:

Genesee Supreme and County Court - (585) 201-5715 Genesee Family Court - (585) 201-5748
Genesee COJ - (585) 201-5719
Genesee Surrogate's Court - (585) 201-5733

Batavia City Court - (585) 201-5764
Court staff can also be reached via email at:

Genesee Supreme and County Court Genesee Family Court
Genesee COJ
Genesee Surrogate's Court

Batavia City Court Appropriate signage will be posted on courthouse doors. 

Elmore asks for time to hire attorney while Oddey waits at shelter

By Joanne Beck

While waiting for her case to be called Tuesday at City Court, Cassandra Elmore sat masked and sniffling, whispering to a companion.

She was called before Judge Thomas Burns about 10 minutes later, and slowly walked forward and took a seat. She said very little, except for yes or no answers. 

Judge Burns read brief descriptions of three charges from Section 353 of the Agriculture and Markets Law. They all have to do with her alleged abuse, torture and/or neglect of her bulldog, which was diagnosed in June of overdosing on some type of narcotics while at her residence.

Elmore had previously indicated that she wanted an attorney, and Burns needed to clarify whether she wanted to hire one or ask for one to be provided to her, per law, and represent her during this case. Elmore said that she was asking “to hire one” for herself.

Burns granted her two weeks and asked if that would be sufficient time. She nodded and quietly said yes. The judge entered a not guilty plea on her behalf and she was released on her own recognizance. Jenna Bauer, representing the county District Attorney's office, agreed to the terms.

Elmore is to return to City Court at 1:30 p.m. on August 11.

“You have to be back with or without an attorney,” he said.

He warned her that if she did not show up, he would issue a warrant for her arrest, and that bail could be modified. She was also asked to provide her full contact information and to go to the jail and get fingerprinted as other conditions of her release.

Volunteers For Animals member Wendy Castleman sat watching the continuation unfold. Castleman was there for Oddey, the canine victim in the case. Although she couldn’t offer a comment about the case specifically as a volunteer, she said, she was able to give an update about Oddey, believed to be a French bulldog.

“He’s doing really well,” she said.

Oddey was taken to Genesee County Animal Shelter after Elmore was charged earlier this month. It has not yet been determined if he will be returned to 30-year-old Elmore or signed over to the shelter for adoption.

Elmore faces three counts of injuring an animal under New York Ag and Markets Law Section 353, which states:

A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a class A misdemeanor.

For prior coverage, go to Cassandra Elmore.

Video: Durin Rogers takes oath of office as new full-time City Court judge

By Howard B. Owens
Video Sponsor
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On Friday, Durin Rogers was sworn in as the new full-time judge Batavia City Court and David Saleh was sworn in as the new part-time judge.

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

By Howard B. Owens

A local attorney representing a woman accused of hitting her child with an object is asking a Family Court judge to disqualify Durin Rogers, and the County Attorney's Office, from prosecuting the case in Family Court because of a perceived conflict of interest.

Thomas A. Burns, representing Niasia Jiggetts, filed the motion Oct. 22 alleging that because Rogers is a sitting, part-time Batavia City Court judge, and Jiggetts is also facing criminal charges in City Court, it opens up an apparent conflict of interest in Rogers access to City Court documents and his interactions with other members of the county's criminal justice system.

If the motion was successful at removing both Rogers, who is also a deputy county attorney, and the County Attorney's Office, the Department of Social Services would need to hire another attorney not affiliated with county government to represent the agency in this case in Family Court.

"As this court is certainly aware, and as DCA Rogers should be aware, a judge is obligated to avoid impropriety and the appearance of impropriety in all of the judge's activities and a judge is obligated to respect and comply with the law and is obligated to act at all times in a manner that promotes the confidence of the public in the integrity and impartiality of the judiciary," Burns wrote in his motion. "As this court is also aware, the judicial duties of a judge take precedence over all of the judge's other activities."

The Batavian contacted Rogers, a candidate for the full-time City Court Judge office, on Wednesday and offered him an opportunity to respond. Rogers said before replying he needed guidance from the Judicial Campaign Ethics Center.

In a request for an interview or statement, Rogers provided the following statement:

As a City Court Judge I cannot comment on pending city court matters, even when it is a case that I am not presiding over. The motion you forwarded to me is directed to me as an attorney. As an attorney with the County Attorney’s Office handling neglect and abuse matters in Family Court, I cannot and will not discuss the specific allegations of such matters due to laws regarding strict confidentiality. As to the motion, it is scheduled in the regular course of proceedings. Based on the Ethics Opinion that I sought and received from the Advisory Committee on Judicial Ethics when I first took the bench that ethically permits me to hold both positions, the motion has no merit and I am confident that it will be denied.

He also provided a link to the January 2015 opinion.

In response to the statement from Rogers, Burns said the 2015 opinion is not a ruling and was issued in response to questions posed by Rogers about serving in two capacities in general, not to actual overlapping roles of a specific case.

"The facts present in my client’s case were never considered in the opinion he cites," Burns said. "He is well aware that the opinion does not provide him with the authority to hold the position of both judge and prosecutor in the same case and to suggest otherwise is a complete misrepresentation of the opinion he cites and a total lack understanding of the ethical obligations he should have assumed when he sought the part-time judge position."

Burns added that Rogers' statement doesn't address the rights of his client nor the direct conflict raised by his duel capacities.

"I also find it troubling that he suggests that he cannot comment on a pending City Court case when he continues to argue the case in front of Judge Adams and Judge Balbick as a prosecutor," Burns said.

Jiggetts was arrested in September for an alleged incident on June 10. She is charged with assault in the second degree. Since the case involves her minor child, there is both a criminal case pending in City Court (because it's a felony, it could be referred to County Court later) and a case in Family Court. The Family Court case also alleges neglect of her child from March through April 2017.

She has pled not guilty.

Burns alleges Rogers has a conflict of interest because he shares chambers with Judge Robert Balbick, the presiding judge in Jiggetts' case, with desks only 10 feet apart and they confer frequently. Also, even though the case isn't assigned to Rogers, he could be asked to sit in for Balbick, if Balbick is unable to make court on any particular day. Rogers also has unfettered access to all City Court documents.

As a City Court judge, Rogers also interacts with many of the people involved in these cases for a variety of reasons, including deputies, social workers, child advocates, attorneys and prosecutors.

As an example, Burns stated, when Jiggetts appeared in City Court on Oct. 1, the assistant district attorney handling cases in City Court that day, had to call Rogers to confer with him about the status of an order of protection issued in Family Court and to "remarkably" seek the input of Rogers about a possible order of protection signed by Balbick. Rogers, Burns said, "consented" to a no offensive conduct order of protection.

"The assistant district attorney should not have to be put in a position of conferring with the associate Batavia City Court judge relative to the status of a proceeding in this court with respect to the matter pending before the senior Batavia City Court judge," Burns wrote.

Burns said in his motion, Rogers' position as both a county attorney and a part-time judge has put a number of people in local criminal justice in "extremely uncomfortable and ultimately unethical positions."

"The appearance of impropriety under these circumstances is clear and results from the unwillingness of DCA Rogers to acknowledge the fact that he cannot prosecute a neglect proceeding involving a pending criminal court charge in the Batavia City Court where he is appointed to act as a part-time judge," Burns wrote in his motion.

While Rogers has been both a deputy county attorney and a part-time city court judge for some time, and Burns said he's had concerns in the past, this is the first time, in his view, there has been a clear conflict of interest.

"There are many cases that overlap but I have never seen one that is so over the top obvious as this one," Burns said in response to an emailed question. "I simply cannot understand the unwillingness of the County Attorney's Office to acknowledge the conflict present here."

Asked for a statement, County Attorney Kevin Earl said, "I cannot comment upon the specifics of any allegations, but I know that during my tenure as the Genesee County Attorney as his immediate supervisor, Durin Rogers has always conducted himself exhibiting the highest professional and ethical standards."

Rogers is being challenged for the full-time City Court judge position by attorney Ben Bonarigo. Burns attended Bonarigo's campaign kick-off event last year.

Q&A with City Court judge candidates: Ben Bonarigo

By Howard B. Owens

Residents of the City of Batavia will select a new full-time City Court judge in the Nov. 5 General Election. The candidates are Durin Rogers and Ben Bonarigio. We sent each candidate a series of questions about their views of the law. We are publishing their written answers verbatim. Here are the answers from Ben Bonarigo.

Among the current members of the U.S. Supreme Court, which justice do you admire the most and why?
Of the current members of the U.S. Supreme Court, I identify with and admire Justice Ruth Bader Ginsberg the most. Justice Ginsberg was raised in a working-class family in a rented apartment in Brooklyn, N.Y. She was a voracious reader and spent a good deal of her early years in the public library. She attended and graduated from public schools. Tragedy struck when her mother died from cancer a week before Ruth graduated from high school.

Earning a full scholarship to Cornell University, the seeds of legal activism and gender equality were planted. She believed very firmly in the idea, and correctly so, that women should be, in all respects, treated equally as men were under the law. This ideal was “firmed up” in her years at Harvard and Columbia Law where she graduated with her law degree at the top of her class. She left Harvard after the Dean asked her (along with her 8 other female classmates) why they were taking up the class seats of men at Harvard Law School. She transferred to Columbia Law School the next year.

After graduation, she became a law school professor and strenuously pursued significant gender-based discrimination cases. Many of those cases she successfully argued before the Supreme Court. After a stint on the U.S. Court of Appeals for the District of Columbia which commenced in 1980, she was appointed, and confirmed in 1993, to become the second female to ever sit as a Justice on the U.S. Supreme Court.

Justice Ginsberg has distinguished herself as a Justice who faced gender discrimination at almost every step of her education and legal career. She used that discrimination to fuel her desire to help women who, like her, were being improperly discriminated against in this country. Although I don’t always agree with where she comes down on her legal opinions, I have the utmost respect for this diminutive lady who has worked her way to the top bench through some very adverse circumstances. She tenaciously fought legal battles for all women to reach equality. She also fought hard for inequalities of other types in her illustrious career before becoming a judge.

She is living proof, and a beacon for all, to show how hard work, a thirst for knowledge, having a passion for what one believes and intense perseverance can propel them to the apex of their chosen field. 

Do you view the Constitution as a living document or would you define yourself more as a strict constructionist, and if neither of these terms fit your view of the Constitution, how do you view it as a point of Constitutional philosophy?
As a City Court Judge, the issue of constitutional philosophy would rarely, if ever, come up, being more the domain of appellate justices or the Justices of the U.S. Supreme Court. To view the Constitution as a living document is to say that the words on the document evolve over time, and they must be interpreted in light of the changes and adaptations of the people that they govern in the current day. In other words, current-day meaning must be read into the words of the Constitution. When interpreted this way, the words are easily stretched to extend the Constitution to meanings that may never have been intended by the Framers. This occurs as a function of judicial interpretation as opposed to Constitutional amendment or the legislative adoption of a law allowing or prohibiting the conduct described.

The ability to interpret, so as to create law, is the reason that the appointment of federal judges has become such a political hot point in America today. If the justices view the document as a “living document”, it politicizes their appointment because they will sit a lifetime on the bench, potentially creating law for decades. This happens no matter what the political affiliation of appointing powers be at the time. I, for one, am tired of all the political wrangling between the nominating President, and confirming Congress, as it places too much emphasis on politics in what is supposed to be an independent, fair and impartial bench beholden to nothing.

On the other end of the spectrum is the view of the strict constructionist, which is sometimes referred to as the “originalist” perspective. An originalist views the Constitution as a law, giving the law the meaning that its words were understood to mean at the time of its adoption. I wouldn’t interpret the Constitution as a living document nor from an originalist position either. I see myself more in line with the late Antonin Scalia, Supreme Court Justice, who was a self-defined “textualist”. Justice Scalia felt that it was not important to look to the Framers' original intent when they set the Constitution up as our national mission statement but to look to the actual words of the document as being the law. Stated a different way, what the words comprising the Constitution meant when it was adopted are what they mean today, not what we think our founding fathers meant when they chose which words to use.

As time and society’s views on the law and policy change, there is an amendment process built into the Constitution that has been exercised many times throughout history since its original adoption. Therefore, the meaning of the document doesn’t change as a result of our changing society. If there needs to be an amendment, then take the steps to amend it. Admittedly, the steps for the amendment process are burdensome and time-consuming; however, not insurmountable as history dictates.

To view the Constitution in any other way than as a “textualist” renders it meaningless. Why have a Constitution at all if a judge or group of judges can change its meaning because of the way the wind is blowing politically or socially? If a “living document” view is taken, this is accomplished by simply stretching the words of the Constitution to fit the desired result, and if by a strict constructionist this is done to add meaning to the Framer’s intent to find the desired result. I might add here, that a “living document” philosophy is not Liberal, as opposed to Conservative, because given the opportunity to ply the Constitution to fit their needs no matter where they fit on the political spectrum if the opportunity arises it will be seized upon.

Justice Scalia referred to it as a modernist view (a living document) versus the traditional view (textualist) and I for one consider myself traditional. While in taking this view I understand that amending the Constitution is a long, laborious and, at times, a politically charged endeavor. Nevertheless, in construing the Constitution in this manner the hope would be that it would take the judiciary out of creating legislation where it may not ever have been intended. It would leave the act of creating law to the elected legislative branch instead of the appointed judges, and amendment of the Constitution to the citizenry of this great Country.

What three books related to the law have influenced your thinking the most about legal philosophy and why?

  1. To Kill a Mockingbird by Harper Lee. This novel was written in 1960 and is set in the American Deep South in the Jim Crow era of the 1930s. I read this Pulitzer Prize-winning novel in my first year of college. Atticus Finch is a white lawyer who is assigned to represent a black man, Tom Robinson, who is wrongfully accused of beating and raping a white woman. Sadly, justice doesn’t prevail as the all-white jury convicts Robinson irrespective of his innocence, which was commonplace in this time and place. Moving beyond the racial injustice, this book stands for much more. I was moved by the high moral standards and ethical behavior displayed by Attorney Finch in his representation of Robinson. Finch, after a slow start, but after realizing that Robinson was wrongfully accused, provides him with a stellar legal defense even though it made Finch unpopular in his own community. To me, this is what stands out most in this novel, and which has left an indelible mark on me. The idea that no matter how unpopular the criminal charge or the accused is, that he is entitled to the best defense the lawyer can put forth on behalf of that person. Indeed, during my 37-year career as a trial lawyer, I was asked countless times “how can you represent that person?” I would respond that as a matter of my legal ethics that if I undertake the representation of an accused individual, I must do so zealously and adequately despite how you or others might feel about the cause. Moreover, what if ever lawyer were scared away from representing individuals in difficult cases. What would happen to justice in our courtrooms? More probably, I thought to myself what would Atticus Finch do or say in this circumstance as he became a symbol, albeit fictional, of what equal protection and justice means in American Jurisprudence.
  2. The Concept of Law by H.L.A. Hart. I read this book as a 1st-year law student and I must admit that it almost scared me away from pursuing a career in law as it so philosophically written. Hart was both a lawyer and a philosopher, and I struggled to find any practical application from it at the time. I thought it important to come to an understanding of what the law was, as I had chosen to embark upon a career in it. I read this book after speaking to one of my Professors. It took me several reads before I came away with what Professor Hart was saying. In this dissertation, Hart defines the difference between rules of law and orders. Orders, refrain people from doing or direct them to do, certain acts with a sanction for non-compliance. Thus, acting as a guarantee that individuals who obey will not be sacrificed to those who do not. Rules empower people to act in certain ways such as to make a will or a contract. Failure to comply with the rules, such as the Statute of Frauds, is to nullify the contract, not sanction the individual. Therefore, rules are normative in nature, molding the way society acts in certain instances. He further distinguished between rules that were “primary” and those that are “secondary”. Primary rules are those that impose duties, such as the Penal Law. Secondary rules are those that give meaning, recognition, empowerment, and enforceability to the Primary rules, such as the Criminal Procedure Law. The uniting of Primary and Secondary rules is what Professor Hart calls the “center” of a legal system. Hart makes us keenly aware that a system of law designed only by fear of coercion will never succeed. It must, in addition, be sensitive to the recognition of authority granted to the system to implement and change the rules as time goes by. Most importantly, it must be based on a sense of moral responsibility because the imposition of laws by the authority (regime as Hart refers to it) that are morally reprehensible are doomed. To me, this illustrates, the sensitive balance that a system of law resides within. When legislatures begin to adopt laws that don’t sit well with the moral public or leave them on the books longer than needed, the fear is that there will be a lack of compliance, which if extended to its logical conclusion, could result in anarchy.
  3. My Own Words by Mary Hartnett and Wendy Williams. This being a relatively new read (2016), it has inspired me to recently think about how polarized our country has become politically. This is a biography of U.S. Supreme Court Justice, Ruth Bader Ginsberg. I have now walked two laps around the entire City of Batavia on the campaign trail. I have found the majority of people warm and receptive to my knock despite differing political labels and affiliations but, not necessarily political views. In a few instances, that fond reception was not the case, and I was surprised by the curt treatment received. During this walk, considering myself somewhat naïve politically, it became apparent to me very early on how polarized we have become as a people; even at this level. Again, most who reject my candidacy are polite indirectly stating so or did so by politely listening to what I had to say and thanking me for stopping by. It is not those that I take issue with, it is the door slammers and name-callers that trouble me. As a firm believer in our democratic form of government, I recognize that political discourse is the bedrock of our society. I have no problem with that, however, I do have a problem with the nature and tenor of the discourse I heard on my walk. In some instances, it’s fairly clear that political civility has gone out the window on a national level and the reasons why would take up space way beyond that allotted here. Suffice it to say there is blame to go around on all sides in my opinion. It never dawned on me for a moment that this unkind treatment of one person by another based upon political affiliation would filter down to this local level for a judicial race. After all, aren’t judges to be independent thinking and insulated from all outside influences including political view? When I embarked upon this campaign, I truly thought that politics would not play into such a low-level judicial position, believing that was a feature of the loftier state and federal benches, and that votes would be cast based solely upon the candidates’ education, legal experience and commitment to the community. Obviously, for some, (thankfully not all), this is not the way they see this type of election. This race, for some, is a microcosm of what is occurring on the national level and “lines have been drawn in the sand.” Which brings me to Justice Ginsberg’s biography. She probably could not be any further away on the political spectrum from Justice Scalia, however, her book is replete with praise for the now-deceased Justice. Even though they rarely saw eye to eye on Constitutional interpretation or philosophy, they were steadfast friends off the bench and thoroughly enjoyed each other’s company and discourse. Justice Scalia said in a 2007 interview: “We are two people who are quite different in their core beliefs, but who respect each other’s character and ability. There is nobody else I spend every New Year’s Eve with.” Justices Ginsberg and Scalia were fond of stating: “it is ok to disagree but, it is never ok to be disagreeable.” I said to more than one person I spoke with about our general state of political affairs locally that we shouldn’t try so hard, spending so much time to find differences between us, but instead, we should find what we share in common and celebrate it. The majority of us have chosen to reside in Batavia. Some of us have raised our families here and have worked our entire lives here. Can we be that different from each other? Don’t we have many of the same values and concerns? Don’t we all enjoy the freedoms bestowed upon us by living in the greatest country on earth? I, for one, believe we do, and I want to continue working towards making our terrific city better and safer for us all!!

There is often a lot of debate around the term “activist judges.” What is your view of such debates? Is this a valid topic or a smokescreen? Is it something the public should worry about?
The term “activist judge” is now defined popularly as a judge who uses the irresponsible exercise of judicial authority. The argument goes that if judges are not bound to the words of the Constitution, we no longer have a government of laws, but of judges.

While attempts to define judicial activism have been difficult, one thing holds true: no matter where U.S. Supreme Court Justices have been on the political spectrum, at various times in history, they have selectively used judicial activism to arrive at a desired result in a case. I don’t necessarily agree with this as I am an avowed “textualist”, however, it is a fact of life.

The Warren Court, spanning from 1953 to 1969, has historically been labeled as an activist majority bench. This court decided many cases using judicial activism on a selective basis. Justice Brennan, who shaped many decisions of this era, deferred to the elected branches of government, unless doing so would allow the democratic majority to disregard the interests of an underrepresented group or, when the governing majority was stifling those that opposed it. In those instances, Brennan felt it appropriate to take a more activist view. Those cases resulted in racial integration of schools, invalidating laws prohibiting interracial marriage, prohibition against compelled self-incrimination, and the right of an accused to effective assistance of counsel, among others.

Richard Nixon utilized this judicial activist history as part of his platform for election to the Presidency. In his nomination acceptance speech, he promised that he would appoint “strict constructionists” rather than “judicial activists” to the bench; implying that he was tired of the liberal bias. Surely, over the next several decades the appointments of Justices by Presidents Nixon, Ford, Reagan and Bush put a much more conservative look to the bench.

Nevertheless, this “conservative bent” didn’t change the court's use of selective judicial activism in many cases decided during this era. These included declaring unconstitutional certain affirmative action programs, gun control laws, restrictions on corporate political advertising, among others.

Even judges who were appointed under the guise of exercising judicial restraint (“strict construction”), the opposite of judicial activism, have become activists because in their judicial discretion they have felt it necessary, and the pull was overwhelming. Considering that courts made up of differing political views have used judicial activism at times as a means to an end, how can it be said by either end of the political spectrum that it is always inappropriate?

Therefore, there is a negative connotation attached to judicial activism by those on the other side of it. However, it seems to be used universally by the Supreme Court at various times. While, I, believe that it is a valid topic of discussion because if judges don’t consider text, sound precedent cases, and societal values and they use activism indiscriminately and without restraint as the way of deciding cases, we will become a nation run by nine judges as opposed to a nation of laws created by a representative legislature.

What is your view of jury nullification?
Deeply rooted in American constitutional democracy is the notion that a person accused of a crime must be judged by a “jury of his/her peers”. In this vein, we want our juries to be independent thinking, self-motivated people who bring their life experiences into the courtroom and deliberation rooms with them to render fair, and impartial verdicts. Individual jurors are instructed by judges to analyze the facts they hear and see, from the witness stand in an unsympathetic, unemotional, almost robotic way and to apply them to the laws applicable to the case as instructed, and directed. The determination of what law applies is up to the judge with the input of the respective defense counsel and prosecutor. In some cases, the expectant independence of jurors causes them not to follow the law as the judge has instructed them but, to find the accused not guilty despite the law.

In these cases, when jurors decide not to follow the written, instructed law and use their independent thought processes to determine if the accused is guilty or not, it can result in a verdict that is called a “jury nullification.” This means that the jurors do not limit themselves to the determination of the case’s facts but, step into the realm of deliberately not following the law provided to them by the judge. In instances of jury nullification, the jury feels more strongly about their definition of justice being served than they do about following the judicial instructions on the law.

Jury nullification may occur for several different reasons, including, but certainly not limited to: the law itself lacks support from the jurors (and the community at large) to be enforced, or the jury feels the law is being misapplied by the prosecutor in the particular case they are hearing. While some would argue that jury nullification is never appropriate, I cannot agree with this assertion. Currently, we never instruct our juries, one way or the other, about the appropriateness or inappropriateness of exercising their independence on the issue of the law, However, in certain instances, they find their own way to it anyway. The subject is taboo for attorneys to bring up in front of the jury, and jurors are not advised on the topic by the judge either.

The most significant argument against jury nullification is found in the racially motivated acquittals of those accused of lynching blacks and murdering civil rights activists in the southern states in the Jim Crow era. All-white juries routinely nullified the law in these types of cases, giving free passes to the accused despite overwhelming evidence of guilt. Obviously, these racially motivated jury nullifications cannot be tolerated nor accepted as a society. So, as I say that I believe jury nullification is appropriate in certain cases to provide a social conscience for the community, it is not without serious reservation on my part, recognizing that it may be used inappropriately as history illustrates.

In order to maintain the rule of law, it is my opinion that judges should routinely instruct juries about nullification, the seriousness of it and that it should be applied in the rarest of cases. Courts should sternly and very carefully instruct juries that nullification should never be based upon some ulterior motive, like racial hatred. Attorneys should be allowed to make counterbalancing arguments in favor of, and opposed to, its use in a given case. In allowing openness and transparency by the “system”, it recognizes jury nullification has been in existence in this country since its founding. Historically, juries have taken this responsibility seriously and have not used it in excess, except for those exceptional cases from our past stemming from hatred, racism, intolerance, and ignorance.

When a jury of our peers is confronted in a trial with a law they feel so repulsive in its design or application, and they are unable to nullify it, by finding the accused not guilty, the grave potential is that they will lose confidence in the ability of the system to be fair and impartial in every case. Inform them, put it in front of them and they will use jury nullification when appropriate, as they do now. In New York, a jury verdict in a criminal case requires a unanimous verdict, so just as history dictates, it will be used rarely.

As the full-time City Court judge, will you ensure court staff is considerate and helpful in fulfilling requests for public court documents, and that all public documents are accessible upon request, and that members of the media can make copies of documents using their smartphones in order to avoid document copy fees?
As the full-time City Court Judge, I will be bound by the rules governing judicial conduct which are set forth in New York Code of Rules and Regulations, Part 100. At Section 100.3 (C)(2) these rules state: “a judge shall require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.” As a judge, one must conduct himself in a courteous and non-condescending manner to all individuals the court conducts business with. By virtue of the quoted rule above, the same holds true to the staff that supports the judge.

Having administered a private law office for over 35 years, I am acutely aware of client relations and the impact they have on the success of the business. Although, success may be measured differently for a court than a private law office, the same standards of common decency and dignity towards those that enter the office apply. It is a matter of creating a culture that is positive, and supportive of all team members, and allows for open and frank discussion of office procedures and policies. In this way, the entire team is included and feels worthy of delivering a first-class service to the public.

All public documents will always be made available to the requesting public upon request. In the event the documents are in the file, which may be in the courtroom, there may be some delay in processing by the staff. As for making copies of documents using smartphones, I personally don’t see a reason why that shouldn’t be allowed, but I would defer to the Office of Court Administration that sets down the rules in these matters.

Q&A with City Court judge candidates: Durin Rogers

By Howard B. Owens

Residents of the City of Batavia will select a new full-time City Court judge in the Nov. 5 General Election. The candidates are Durin Rogers and Ben Bonarigio. We sent each candidate a series of questions about their views of the law. We are publishing their written answers verbatim. Here are the answers from Durin Rogers.

Among the current members of the U.S. Supreme Court, which justice do you admire the most and why?
I admire our United States Supreme Court as a whole entity. It is an integral part of our judicial system and an essential part of the checks and balances created by our Constitution to ensure that no one branch of government becomes too powerful. It is part of our American way of life and so important because its decisions can affect so many aspects of our daily lives, whether that be our right to freedom of religion, speech and press; our right to bear arms; our right to travel; our right to legal representation; and so many more.

Do you view the Constitution as a living document or would you define yourself more as a strict constructionist, and if neither of these terms fit your view of the Constitution, how do you view it as a point of Constitutional philosophy?
A Judge should never interpret the Constitution to meet their own individual preferences. As a local court judge, I have an obligation to follow legal precedent (established laws and the decisions of our New York and Federal courts). When I sit on the bench, I likewise expect that the attorneys before me base their advocacy on legal precedent. As such, it would be a rare situation for me to be called upon to interpret the Constitution and determine an issue that has not come up before. Any personal agenda to expand or narrow the intention of the law is inconsistent with the role of a judge as that would be imposing one’s own will on the bench. Instead, every decision of a judge should represent the application of the law fairly and equally to the facts at hand.

What three books related to the law have influenced your thinking the most about legal philosophy and why?
Having first read this book in law school, Roger Fisher and William Ury’s Getting to Yes was of great influence as it taught negotiating and bargaining by separating the person from the problem and taking emotion out of it.

The Federalist Papers, which are indispensable commentaries on the Constitution and the new system of government our Founding Fathers created in the late eighteenth century.

John Grisham’s The Firm was the first legal drama I read while in law school before Tom Cruise starred in the blockbuster movie. It incorporated so many legal issues (attorney-client privilege, search and seizure, probable cause, etc.) in such a great read. It confirmed my love for the law.

There is often a lot of debate around the term “activist judges.” What is your view of such debates? Is this a valid topic or a smokescreen? Is it something the public should worry about?
An activist judge may decide what he or she thinks the law should be, without regard to what it actually is. An activist judge acts as a legislator and blurs the lines between the branches of government. It is not the role of a city Court judge to render decisions that effectively rewrite laws and replace the role of elected legislators. With that being said, as a Judge, I do actively try to administer justice for our community and the people who come before the court. Lawbreakers need to be held accountable for their actions and as a Judge, my goal is to help them realize the value in being constructive members of our community. A judge can use many tools to get individuals to confront and address their problems, whether they are substance abuse issues, mental health issues, or basic issues revolving honesty while ordering appropriate and just consequences for their actions. (CLARIFICATION: On the first published version of this answer, we mistakenly left part of the question unhighlighted making it look like it was part of the answer.  It's now corrected.)

What is your view of jury nullification?
In rare situations, juries have been known to disregard the legal instructions given to them by a court when applying to facts of a particular case. As a sitting Judge, I have an absolute obligation to instruct a jury to follow the law and jurors swear an oath to do so. I have a sworn obligation to advise the jury on what the law is, and it's up to the jury to apply the law to the facts and determine a defendant’s guilt or innocence. If citizens do not like a particular law that has to be applied to a particular case, the remedy under our system of government is for them to persuade their representatives in the legislature to change the law, or to elect new representatives who will do so.

As the full-time City Court judge, will you ensure court staff is considerate and helpful in fulfilling requests for public court documents, and that all public documents are accessible upon request, and that members of the media can make copies of documents using their smartphones in order to avoid document copy fees?
In general, the media and members of the public may get copies of public documents upon appropriate request, yet they are not allowed to photograph documents. While I can certainly appreciate the changes in technology and the ease that this would allow, the decision on whether to allow photography of documents and the fees charged for copies of any documents, are policy decisions made by the New York State Office of Court Administration, not the Batavia City Court Judge. A local judge, part-time or full-time, simply does not have the authority to change these policies based on his or her own personal feeling.

Rogers, Bonarigo heading for November general election after Rogers wins primaries

By Howard B. Owens

Durin Rogers, running to move up from part-time City Court judge to full-time, won the Republican primary vote Tuesday, beating attorney Ben Bonarigo, 644 votes to 396 votes.

Rogers also won on the primary lines for Conservative and Independence by 43-16 and 48-34, respectively.

Though Bonarigo was unable to win the Republican line for the general election in November, he will still appear on the ballot on the Democratic line.  

Bonarigo faced no challenge for the Democratic line.

Video: Interview with City Court judge candidate Durin Rogers

By Howard B. Owens


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Thursday evening, Judge Durin Rogers, and one of two candidates for the full-time City Court judge position held a "coffee and conversation" event at the Holland Land Office Museum.

Since we haven't had a chance to cover Rogers at a public event since the campaign started, and we did cover Benjamin Bonarigo's campaign kickoff, including a short video interview, we wanted to be sure to provide Rogers with similar coverage.

We wound up with a 10-minute interview with Rogers and decided to post the entire interview.

Rogers hosts another "coffee and conversation" event at the Richmond Memorial Library on May 25 from 9:30 to 10:30 a.m.

To view our previous coverage of Bonarigo's campaign kick-off, click here.

Bonarigo campaign announces successful petition drives for six lines on City Court ballot

By Howard B. Owens

Press release:

Citizens to elect Ben Bonarigo for City Court Judge are pleased to announce that the required signatures have been collected to qualify him the for Democratic, Republican, Conservative, Working Families, Green and Independence lines on the ballot for the June 25th primary election. Bonarigo submitted more than 1,100 signatures.

“I can’t thank everyone enough,” Bonarigo said. “Our volunteers and supporters carried petitions in some very difficult weather conditions to achieve our goal and they did it very quickly. We had a highly dedicated and fantastic team of individuals.”

Although our judges are elected, the job they do is not a political one. They are to remain impartial, unbiased and not beholden to any political party. Bonarigo’s willingness and determination to obtain primary ballot status for all party lines demonstrates his commitment to fairness and impartiality to all the citizens in the City of Batavia regardless of their party affiliation.

"My goal is to allow as many city voters as possible, a choice in deciding who will be their next judge,” he said. 

CIty Democrats endorse Bonarigo for City Court Judge

By Howard B. Owens


Press release:

City of Batavia Democrats announce the endorsement of Benjamin Bonarigo Sr. for full-time City Court Judge.

The City of Batavia Democratic Committee voted unanimously to endorse Benjamin Bonarigo Sr. for full-time City Court Judge at their endorsement meeting on Feb. 5th.

Of the endorsement, Chair of the City of Batavia Democratic Committee Erica O’Donnell said, “Mr. Bonarigo’s resume speaks for itself. He is beyond qualified for this position, but beyond that he exhibits a deep commitment to service in our community.”

Bonarigo said: “I am truly honored to have received the support of the City of Batavia Democratic Party and I promise to work hard, just as I have done everyday for the past 36 years of my legal career, to earn the trust and support of the voters in this election.

"I hope to live up to the faith the Democratic Party has shown in me and to make all voters proud to vote for me as the next Batavia City Court Judge. I pledge to be a fair and impartial jurist in every case, listening to the voice of every person that comes before me.”

Aside from establishing his own successful legal practice in the City of Batavia, Bonarigo has serve on many boards, committees and volunteer organizations. He has been involved in youth football, Mock Trial, Literacy Genesee/Orleans, Notre Dame High School Foundation Board and Board of Trustees, the Holland Land Office Museum, Genesee Community College Board of Trustees, and The Twenty-Five Neediest Children’s Fund Inc.

O’Donnell says, “Ben is the perfect example of a public servant and I’m honored to support him. I’m in no way shocked that he received such a warm response from our committee.”

Bonarigo kicks off City Court campaign, promises to be impartial, fair judge

By Howard B. Owens


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Contested elections for judicial seats are rare but voters in the City of Batavia are faced with one in 2019.

Durin Rogers and Ben Bonarigo are vying for the full-time City Court judge position, which becomes open next year because of the mandatory retirement of Judge Robert Balbick.

Saturday morning, Bonarigo officially kicked off his campaign in front of about 200 supporters at City Church's Generation Center on Center Street downtown.

"I think that I've got the experience," Bonarigo said when asked about his qualifications. "Thirty-six years practicing law in the trenches, representing people every day with various civil and criminal cases. I know the rules of evidence.

"I know how to behave in a courtroom, and I know how a judge should act. I've got the right temperament, the ability to listen, the ability to hear everybody who comes before you, to be impartial and fair."

If elected, Bonarigo promised that everybody who came before his bench would be treated fairly.

To get elected, he will have to beat Rogers, who is already a part-time City Court judge and has the City Republicans' endorsement.

But that endorsement doesn't guarantee Rogers the R-line in November.

Bonarigo and his campaign team, led by Nikki Calhoun, are planning a petition drive to force a Republican primary in June. The winner of that June 25th election will win the R-line in the November election.

If Bonarigo were to lose the primary, he could still face off against Rogers in November on the Democratic line.

Ben Bonarigo announces candidacy for full-time City Court judge

By Howard B. Owens

Press release:

Benjamin J. Bonarigo Sr., a City of Batavia attorney, has announced his candidacy for Batavia City Court Judge. A lifelong resident of Batavia, Bonarigo is seeking to be elected to the position being vacated at the end of 2019 by the retirement of the Hon. Robert J. Balbick, who reaches mandatory retirement age.

Bonarigo and his wife, Diane, a retired City of Batavia elementary school principal, have made the City their home, where they raised three children, two of whom continue to reside within the City with their families.

A 1975 graduate of Batavia High School, Bonarigo attended Genesee Community College, while working in his family’s restaurant, attaining an AS Degree in General Studies in 1977 and a Bachelor of Science Degree in Business Management, cum laude, from the State University of New York at Buffalo in 1979. He furthered his education by attaining his law degree from the State University of New York at Buffalo Law School in 1982 and was admitted to the practice law in New York State in 1983.

During his practice, Bonarigo has acted as the attorney for: the City of Batavia, the Town of Batavia, the Village of Oakfield and the Village of Oakfield Central School District.

At the start of his career, Bonarigo worked in the Genesee County Public Defender’s Office where he worked part-time while at the same time establishing, over the next 37 years, a flourishing legal practice, which is now known as Bonarigo & McCutcheon. He has practiced in all areas of civil and criminal law all over Western New York and beyond.

While practicing law, Bonarigo has been very committed to his profession, having been appointed to the Appellate Division 4th Department Grievance Committee for six years, during which time he, along with others, sat to review the ethical behavior of attorneys from all over Western New York.

He was also appointed to the Independent Judicial Qualification Commission for the 8th Judicial District on which he participated in the review, and rating, of candidates for judicial offices in all of Western New York courts. He is a longtime member of the New York State Bar Association to which he was a delegate representing the attorneys of Genesee, Orleans and Wyoming counties during State meetings.

He has been a member in good standing with the Genesee, Orleans and Wyoming County Bar associations, serving as president of the Genesee County Bar. During his tenure as president of the Bar Association, Bonarigo implemented an attorney-reading-with-students program in the elementary school in the Batavia City School District.

In addition to his commitment to the legal profession, Bonarigo has been highly involved in civic matters in the City of Batavia. He has been: a coach and been a member of the Board of Batavia Youth Football; a client tutor and member of the Board of Literacy Genesee/Orleans; a member of the Notre Dame High School Foundation Board; a member of the Notre Dame Board of Trustees; a member of the Board of the Holland Land Office Museum; and a Mock Trial judge for many years.

Bonarigo is currently a member of the Board of Trustees at Genesee Community College, having been appointed by the Governor in 2011. He, along with his co-board members have overseen a significant expansion of the campus facilities. He is also a member of the Twenty-Five Neediest Children’s Fund Inc., which financially assists students and families within the Batavia City School District.

For his civic efforts, Bonarigo was been inducted in 2011 to the Genesee Community College Hall of Fame; granted an honorary diploma from Notre Dame High School in 2010; and was recognized as a Friend of the ARC in 2013.

“With my breadth of professional experience, love and commitment for the City of Batavia, its residents, including my family, neighbors and friends, I feel that I am uniquely qualified and I am the best-suited candidate to be elected to the City Court bench," Bonarigo said.

"It will be with great pride, impartiality, humility, and compassion that I will sit daily making judgments that continue to better our community. I look forward to the challenges ahead in this election process and look forward in the next several months as I reconnect with old acquaintances and, making new ones, as I seek your support for this position.” 

Durin Rogers announces candidacy for full-time city court judge

By Howard B. Owens

Press release:

Today Durin Rogers, attorney and City of Batavia part-time judge, announced his candidacy for the full-time Judge of the Batavia City Court post that will become vacant at the end of this year.  Judge Rogers would be running to replace current City Court Judge Robert Balbick, who will retire after reaching mandatory retirement age.

Judge Rogers has served as the part-time Batavia City Court judge for almost four years following his unanimous appointment by Batavia City Council in 2015. 

“I am excited to officially announce I will be seeking the full-time Batavia City Court judgeship this coming November...," said Judge Rogers.  “I made this decision because I sincerely believe that I have the qualifications, experience, and commitment to our community that the residents of the City of Batavia deserve.” 

During his past four years on the bench, Judge Rogers has handled all types of cases within the court's jurisdiction including civil, criminal, small claims, housing code violations and even matters in the drug court and veteran's courts. He has championed effective service to the community including cochairing the Centralized Arraignment Part Program (CAP), a program designed to assist in the timely arraignment and representation of Defendants in criminal proceedings.  He has spear-headed the efficient processing of housing code violations and established a protocol to effectively and timely deal with "zombie" properties neglected by non-local corporations and owners.

“Each of these responsibilities comes with difficult decisions that impact the lives of those before the Court and those in our community," Judge Rogers said. "A judge’s legal background and experience, commitment to the community, and character are essential to making fair and honest decisions while holding offenders accountable."

Judge Rogers has dedicated his almost 25-year legal career to public service, including volunteering with the Public Defender's Office and handling assigned counsel matters throughout the GLOW region in criminal and family courts.  He has served as an attorney in the Genesee County Attorney's office since 1995, where he was lead prosecutor for juvenile delinquency proceedings for more than 20 years; and handled all types of matters within the office including domestic violence/family offense matters; abuse and neglect proceedings; and contractual negotiations for the Genesee County Public Radio system.

Judge Rogers has extensive experience in electronic evidence particularly in admission of social media. He has been a frequent speaker in this area across New York State.

“As more and more individuals integrate this form of electronic communication into their lives, my unique knowledge of this area of law will be of great value to the Batavia City Court Bench,” added Judge Rogers.

“It is with this background, having been a prosecutor, a defense attorney and now a judge, that I believe I have the unique qualifications and legal experience to understand and administer justice in the City of Batavia so that all residents of our community feel safe and are treated fairly… I will do so with integrity, respect and the temperament that a judge must have when hearing cases fairly, each day, every day,” Judge Rogers said.

Judge Rogers commitment and passion for public service extends beyond the court system. Over the years, Judge Rogers frequently volunteered his time and commitment to coach youth sports including baseball and basketball for more than 15 years.  He assisted in bringing the "Youth Court" to Genesee County. He was a founding board member of Habitat for Humanity of Genesee County; a volunteer Budget Ambassador for the Batavia City Schools District; an appointed member of the Batavia City Youth Board; a member of the original Board of Ethics for the City of Batavia; and a member of the City of Batavia Police Facility Task Force.

Other volunteer activities included being an attorney for the Surrogate’s Decision-Making Committee (SDMC), and president of the Genesee County Bar Association (GCBA), during which time he collaborated with the Genesee Community College to bring a new program to Genesee County known as the “People’s Law Series,” a biannual symposium designed to educate and guide the public in topical areas of law.”

Judge Rogers lives with his wife, Paula, and their four children in the City of Batavia. His family has resided in Batavia for almost 18 years and are proud to call Batavia home. Rogers is a graduate of the University of Florida with a Bachelor of Arts in Criminology and Law; and received his Juris Doctor legal degree from the Cleveland-Marshall College of Law in Cleveland, Ohio.

Durin Rogers takes oath as new City Court judge

By James Burns

In front of a filled courtroom and his family Durin B. Rogers, Esq., was sworn in as Batavia City judge this morning.  

Genesee County Court Judge Robert C. Noonan sworn in Judge Rogers as his wife held the Bible for them.

In a brief statement afterward, Judge Rogers thanked his family, the Batavia City Council and the employees of the court system, saying “I thank all of you and look forward to seeing you soon. ... Just not in court for a speeding ticket.” 

Appointment of new City Court judge ruffles some county feathers

By Howard B. Owens

Ray Cianfrini, chairman of the Genesee County Legislature, and himself an attorney, wishes Durin Rogers all the best as the new Batavia City Court Judge, but also expressed disappointment that Rogers sought the job in the first place

Speaking during a Ways and Means Committee meeting Wednesday, Cianfrini said it was his impression that when Rogers took an assistant county attorney position, he was setting himself up to eventually become the county attorney.

Now he's no so sure.

"It seems to me he's using the county to advance his own position," Cianfrini said. "I'm not going to stand in his way, but I think being a city court judge hurts him when it comes time to consider a new county attorney."

Granted, the current county attorney, Charles Zambito, has no apparent immediate plans to step down, but Cianfrini said he was under the impression Rogers was given duties and responsibilities commensurate with gaining the experience necessary to eventually replace Zambito.

Zambito said Rogers has certainly filled an important role, one that should continue in his department, of being prepared to step in as county attorney if Zambito was unavailable.

Rogers was appointed City Court judge last week by the Batavia City Council to replace Michael Del Plato, a Cianfrini law partner, who retired from the judge position at the end of his term.

Rogers is on vacation and an assistant said there was no way to reach him to get his comment on the sudden controversy over his new appointment.

The discussion came up while Zambito introduced a resolution to adjust Rogers' position from full-time to part-time.

As a City Court judge, Rogers will be required to be in court at least one day a week, which means he won't be available to the county on those does.

His hours are being reduced from 37.5 hours per week to 30 hours per week. That means he will now be paid $66,494 a year by the county, instead of $83,118, a payroll savings for the county of $18,624.

State law also prohibits judges from acting as prosecutors in criminal matters. As part of Rogers county ties, Rogers has handled cases in family court involving under-age offenders and PINS (persons in need of supervision) cases, which while technically civil cases, are also considered criminal prosecutions.

Assistant County Attorney Paula Campbell will assume that case load and Rogers will take over her duties handling abuse and neglect cases and termination of parental rights.

Attorneys sought as candidates for part-time City Court judge position

By Billie Owens

Press release:

The City Council is seeking to fill a part-time City Court Judge position. This position is appointed by City Council to serve a six (6) year term and will be effective April 21, 2015. Minimum qualifications require candidates to be an attorney admitted to practice law in the State of New York for at least five (5) years as of the date he or she commences the duties of the office and must be a resident of the City of Batavia.

All interested candidates please submit a letter of interest by Feb. 28, 2015 to:

City Court Judge

Attn: City Council President Brooks Hawley

One Batavia City Centre

Batavia, New York 14020

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