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.

More than 2 1/2 hours after the scheduled start time for a hearing a motion on allegations that Durin Rogers, City Court judge and assistant county attorney, has a conflict of interest in a Family Court matter, a reporter from The Batavian was denied access to hear arguments in the case.

Erin P. DeLabio, a judge from Erie County handling the motion after Judge Eric Adams recused himself, wouldn't even allow the reporter into the courtroom to make an argument for public transparency on the motion or grant a motion to delay the case until the reporter could obtain legal counsel. 

A deputy said DeLabio said that the motion was part of a sensitive matter.

According to a legal expert we consulted, Family Court is open to the public though individuals can be excluded from sensitive cases based on a finding supported by evidence. A motion about the attorneys in the case is not sensitive to the attorneys and the legal guardian of any children involved can consent to the presence of third-party observers.

There's no indication that DeLabio based her decision to exclude the press, and thwart public transparency of a case involving a fellow member of the judiciary, on any evidence nor that the legal guardian of the minors was consulted as to their position on a reporter being present for only the motion portion of the case.

Last month, attorney Thomas Burns filed a motion seeking to have Rogers removed from a Family Court case because of what Burns perceives as a conflict of interest.

The motion alleges that Rogers -- as a sitting, part-time Batavia City Court judge, with Burns' client also facing criminal charges in City Court -- has an apparent conflict of interest because Rogers has access to City Court documents and his position means he tries cases with other members of the county's criminal justice system who might also be involved in both cases. 

"As this court is certainly aware, and as DCA Rogers should be aware," Burns wrote in his motion, "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."

In a response to The Batavian for publication of the original story (see link above), Rogers denied there was a conflict of interest.

Photo: Taken of Erie County Judge Erin P. DeLabio from outside Genesee County Family Court through the doorway window.

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.

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.

(Administrator Patricia McAllister and candidate Durin Rogers.)

Submitted photo and press release:

Stressing his experience and proven “track record” Independent Living of the Genesee Region administrator and past YWCA Interim Executive Director Patricia McAllister has endorsed part-time City Court Judge Durin Rogers in his effort to become Batavia’s next full-time judge this November.  

In noting her lengthy experience observing Rogers' work with clients of the YWCA’s domestic violence program, McAllister said: “In my 21 years at the YWCA…I got to know the passion and drive behind [Judge Rogers] whom I have come to greatly respect and admire…

"[W]hen situations involved domestic violence victims, Judge Rogers was a champion for our clients and demonstrated not only a responsive, ethical and knowledgeable character, but one of compassion and understanding of the practical issues facing domestic violence issues”

She also praised Judge Rogers’ unique judicial experience as an important factor supporting her endorsement.

“There is no substitute for [Rogers’] four years of judicial experience as a (part-time) Batavia City Court judge," McAllister said. "Judge Rogers has a proven track record holding offenders accountable while considering all aspects of each case with excellent judicial temperament.

"The newly elected City Court judge will need to hit the ground running; no other candidate can do this as Judge Rogers can… I highly recommend Judge Durin Rogers as the next full time Batavia City Court judge. He is the most qualified candidate…”

Following McAllister’s endorsement, Rogers responded, “I am honored by Ms. McAllister’s support and kind words. Her endorsement, along with the many others I have received, range from law enforcement to service agencies, to individuals who work in our community. I am very proud and humbled to have received such a wide array of endorsements from so many in our community.”

Above, part-time Batavia City Court Judge Durin Rogers, left, and Sen. Michael Ranzenhofer.

Submitted photo and press release:

New York State Senator Michael Ranzenhofer has given an enthusiastic boost to Judge Durin Rogers in his effort to succeed retiring Judge Robert Balbick as Batavia’s next full-time City Court Judge.

Senator Ranzenhofer has represented Batavia and Genesee County since 2008 and has been a practicing lawyer for more than 35 years.

“This coming November 5th you have an opportunity to elect a Batavia City Court Judge with proven judicial experience, integrity, judicial temperament and commitment to the community," Ranzenhofer said. "It is for these reasons that I proudly support Hon. Durin B. Rogers in his effort to become your next full-time Batavia City Court Judge.

"I have known Judge Rogers for many years now as an attorney and colleague practicing law throughout the GLOW region and most recently as (part-time) judge of the Batavia City Court…He is well respected on and off the bench and I have had the opportunity to appear in front of Judge Rogers on the bench and opposite him as deputy county attorney for Genesee County. I found Judge Rogers’ approach in both capacities to be professional, knowledgeable, reasonable and fair.”

Senator Ranzenhofer also stressed Rogers’ community service, saying: “In addition to his service as a public attorney, he has served the legal community and its members as a past president of the Genesee County Bar Association bringing the 'People’s Law Series,'…to provide low cost legal education and seminars to the residents of Genesee County.

"...Judge Rogers has and will continue to be a fair judge and listen to all sides before making well-reasoned decisions…Please join me in supporting Judge Durin B. Rogers as your next full-time Batavia City Court judge."

Responding to the Ranzenhofer endorsement, Rogers said: “I truly appreciate Senator Ranzenhofer’s comments and his support. Over the past many years, the Batavia City Court has become a well-respected part of our system of justice.

"I have worked with Judge Balbick over the past four years and we are always considering ways to improve the court’s ability to meet Batavia’s evolving needs. I am committed to carrying on those efforts in the years to come if elected as Batavia’s next full-time judge.”

Photo above: Part-time Batavia City Court Judge Durin Rogers and Theresa Asmus-Roth, coordinator of Justice for Children Program.

Submitted photos and press release:

Theresa Asmus-Roth and Captain James C. Davis have added their names to the list of those endorsing Durin Rogers, a part-time Batavia City Court judge who is seeking election as the court's next full-time judge.

Asmuth-Roth is coordinator of Genesee County’s Justice for Children Program; Davis is coordinator of the County’s S.T.A.R. Program.

The Justice for Children Program is the Genesee County Agency that advocates for and give services to local children who have been victims of abuse or witnesses to violent acts, while the S.T.A.R. (Student Transition and Recovery) Program addresses the needs of local students who are facing school discipline or removal from their homes.

“I have worked with Judge Rogers in his role with the Genesee County Attorney’s Office as a part of the Justice for Children CORE team since my career in victim advocacy began in 2001," said Asmus-Roth, highlighting her experience with Rogers over the past 18 years.

"This has given me the opportunity to witness his dedication to child victims of abuse and view him as an experienced, thoughtful, and passionate legal professional."

She continued: “The Batavia City Court judge fills a crucial role in this community; a role that balances the constitutional and legal rights of a defendant against safety and justice for crime victims and the community as a whole… Judge Rogers’ decades of experience as a defense attorney, prosecutor, corporate counsel, and Judge have equipped him to excel in this position. It is with that in mind that I endorse Judge Durin Rogers for full-time city court judge.” 

Davis commended Rogers’ efforts in working with Family Court Judge Eric Adams in bringing the S.T.A.R. Program to Genesee County. He also praised Rogers’ ongoing support of the program since its inception as reasons for his endorsement.

“In my dealings with Judge Rogers…his knowledge of family matters within the court system has proved beneficial and supportive to the Genesee County S.T.A.R Program’s success,” Davis said. “I have personally learned and benefited from Judge Rogers’ knowledge of the law and his extraordinary ability to deal with and relate to ALL individuals

"We fully endorse his candidacy…I have no doubt that [Rogers] will be welcomed as your Batavia City Court judge and will serve the legal system and the City of Batavia with integrity and honor.” 

Rogers said “I have truly enjoyed working with Theresa and Captain Davis over the years. They are true professionals and have devoted their careers to protecting and assisting children in our community. I am proud to work with them and have their support and endorsement.”

Photo below: Captain James Davis of the S.T.A.R Program, part-time Batavia City Court Judge Durin Rogers, and Sgt. Robert Ettinger, S.T.A.R Program.

Submitted photo and information:

Part-time Batavia City Court Judge Durin Rogers has received the endorsement of the New York Police Investigators Association supporting his effort to become Batavia’s next full-time city court judge, citing his experience and years of public service.

NYSPIA represents more than 2,000 active and retired State Police Bureau of Criminal Investigation officers.

Association President Christopher Quick and Troop A Delegate Michael J. Connors stated in a letter to Rogers:

“It is with great pride that we support your candidacy for City of Batavia Court Judge. For almost four years, you have served on the bench…following a unanimous appointment by the Batavia City Council.

"During that time you have had the opportunity to handle thousands of cases, including criminal, civil, housing, drug court and Veterans Court; gaining valuable experience throughout."

Quick and Connors also noted Rogers’ “successful, long-term career as a prosecutor with the Genesee County Attorney’s Office, handling family offense domestic violence petitions…juvenile delinquency petitions, pistol permit hearings and child abuse and neglect filings.

"The New York State Police Investigators Association appreciates your years of service and our membership has great confidence in your ability and foresight…we offer our full support in your candidacy.” 

Rogers said: “I am honored and grateful to the New York State Police Investigators Association for their endorsement. Their support, along with the many other public officials and community members who have supported me in my effort to become Batavia’s next City Court Judge, only serves to confirm my commitment to our great community.

"As I canvass this great City and visit with our local citizens, I continue to listen to the people and their concerns and issues with our system of Justice. If elected, I look forward to serving this community faithfully, professionally and with the highest standard of excellence and ethics."

For further information, please contact the Committee to Elect Judge Rogers by visiting their Facebook page @electjudgerogers (facebook.com/electjudgerogers); by visiting www.electjudgerogers.com;  or by email at electjudgerogers@gmail.com

(Photo: Full-time Batavia City Court judge candidate Durin Rogers, left, with Michael J. Connors, Troop “A” Delegate for the New York State Police Investigators Association.)

The association representing Genesee County’s Corrections officers and other Sheriff’s employees has enthusiastically endorsed Durin Rogers (inset photo right) to become Batavia’s next full-time city court judge.

Genesee County Sheriff’s Employees Association (GCSEA) President Kevin Wolff cited several reasons supporting the decision to endorse Rogers, who is currently a part-time Batavia City Court judge.

“Judge Rogers’ enthusiasm and dedication to the bench, his family and our community is evident,” Wolff said. “[He] has extensive experience on the bench handling thousands of cases as a Batavia City Court Judge and has a proven track record.

"Judge Rogers’ multifaceted experience and steadfast integrity make him the obvious choice to be the next full-time city court judge.

"...Our endorsement also acknowledges Judge Rogers’ …ready availability to law enforcement day and night, seven days a week for after-hours arraignments and warrants…Judge Rogers is a shining example of what all citizens of Batavia should strive to be.”

The endorsements Rogers’ has received have caught the attention of many local Republicans according to local attorney and City Republican Chair David Saleh.

“I’ve been contacted by many Republicans from Batavia and around the county who have been very impressed by the support Judge Rogers’ is receiving,” Saleh said.

“He’s been endorsed by an impressive group of people including our county sheriff, our commissioner of social services, the head of Genesee Justice, the Genesee County attorney, the president of our city council and now the association representing so many of the employees of our Sheriff’s (Office).

"This all shows that Judge Rogers has proven himself as a fantastic lawyer and judge and he is the only candidate who can complete the full 10-year term. He has definitely earned the support of Batavia’s Republicans as our endorsed Republican candidate for the upcoming June 25^th primary.”