27 – NYS Support Magistrates Violate State Constitution
In 1988, I had my attorney file my first appeal after I was tried, convicted and sentenced to jail in a closed court proceeding that deprived me of my constitutional right to a jury trial. He raised two issues. 1. I could not afford to pay what was ordered as it was more than my income. 2. That the office of hearing examiner violated the composition of the NYS Constitution, Art 6, §13 that states: [Family Court established, composition; elections and appointment of judges; jurisdiction]
- The family court of the state of New York is hereby established. It [family court] shall consist of at least one judge in each county outside the city of New York and such number of additional judges for such counties as may be provided by law. …
There is NO mention of the words “support magistrate” or “hearing examiner”. Therefore, the position of “hearing examiner” or “support magistrate” is not authorized to hear family court matters under the NYS Constitution Art. VI, §13 and therefore, Family Court Act 439 is unconstitutional.
A little history. The Hearing Examiner or support magistrate, is a non-judicial employee of the Unified Court System, is for all purposes a judge possessing all the powers of a Family Court Judge duly elected or appointed pursuant to Article VI, §13(a) of the NYS Constitution in support proceedings, USDL proceedings, proceedings involving enforcement or support orders by income executions, and the fact-finding part of contempt proceedings and recommending punishment.
In short, the support magistrate who is not a judge is presiding over a trial to determine the quilt or innocence of a litigant charged with contempt of court for failure to pay child support and faces six months in jail plus other onerous penalties pursuant to Family Court Act §454 that are discussed in other scoops. The support magistrate is not on a fact-finding mission, the support magistrate is determining guilt or innocence and recommending the sentence or the punishment the litigant will receive. In most cases, the magistrate is determining if the litigant violated their own order. They have a vested interest in covering up their own illegal court orders that do not comply with the Child Support Standards Act.
The hearing examiner is appointed by the chief administrator of the courts who himself is appointed by the chief judge of the court of appeals who is appointed by the Governor of the State of New York. No accountability!
The appellate court ruled that I could not afford to pay what was ordered and remanded it back to family court. I was then ordered to pay more in child support and placed over $4,000 in arrears by another illegal court order as my attorney did not raise other issues that he should have as discussed in my other scoops.
The Legislature has no authority to change the composition of the family court as stated in the NYS Constitution. Only a constitutional amendment can do that. Having litigants appear before a support magistrate is not a procedural rule and a procedural rule cannot violate the NYS Constitution. Procedural rules would be the how petitions or motions are to be filed in family court. Just google Uniform Rules for Family Court. https://www.nycourts.gov/rules/trialcourts/205.shtml
The starting point for any constitutional question must be the language of the constitution itself. People v. Carroll, 3 N.Y.2d 686, 689, 171 N.Y.S.2d 812, 814: When the language is clear and leads to no absurd conclusion there is no occasion, and indeed, it would be improper, to search beyond the instrument for an assumed intent. 3 N.Y.2d 688, 171 N.Y.S.2d at 814.
Commissioner of Social Services v. Robert G., 72 A.D.2d 9, 423 N.Y.S.2d 155 at 162:
 The Legislature may NOT constitutionally regulate the details of the manner of performance of the court’s jurisdictionally mandated duties (Riglander v. Star Co., 98 App.Div. 101, 90 N.Y.S. 772)
Ignore the above law. This is how the Appellate Court fixes cases.
The Appellate Court in my case, Carella v. Collins, 144 AD2d 78, 81 held:
N.Y. Constitution, article VI, § 30 vests broad power in the Legislature to make procedural rules for the courts (Cohn v Borchard Affiliations, 25 N.Y.2d 237, 247). The Legislature, in enacting Family Court Act § 439, has recognized the need to “[e]xpand the powers of hearing examiners in child support cases and require the use of such hearing examiners to expedite child support determinations” (Executive Dept mem, 1985 McKinney’s Sessions Laws of NY, at 3162; see, Glass v. Thompson, 51 A.D.2d 69). (It should be noted that Glass v. Thompson is not on point as the family court is a constitutional court whose composition is determined by the NYS Constitution while the city court composition is determined by the legislature as it is NOT a constitutional court. Further, §30 does NOT vest powers in the legislature to make procedural rules that violate the NYS Constitution!)
Even if the authority vested in Family Court Hearing Examiners could be shown to infringe in some way upon the province of Family Court Judges, any such infringement would not be an unconstitutional grant of authority because the final authority to review determinations made by Hearing Examiners is reserved for Family Court Judges (cf., Chase v. Scalici, 97 A.D.2d 25). Accordingly, respondent has failed to meet the “heavy burden of demonstrating the statute’s unconstitutionality” (Babigian v Wachtler, 69 N.Y.2d 1012, 1013-1014).
The court stating: “any such infringement would not be an unconstitutional grant of authority because the final authority to review determinations made by Hearing Examiners is reserved for Family Court Judges” is nothing but bull. Whether or not the family court judges have the final authority to review the determination of the hearing examiners and/or support magistrates is irrelevant as the State Constitution, Art. VI, §13, specifically states the family court shall consist of only judges and the judges are required to make the determinations, NOT review the determinations.
Notice, the appellate court judges Casey, Mikoll, Yesawich, Levine & Harvey deliberately made no reference to and completely ignored the NYS Constitution, Art. VI, §13 that clearly states the composition or organization of the Family Court. The order states no documentation or case law that the Legislature has the authority to modify the State Constitution on its own whim. Further, the order fails to state any authority under “composition” or “organization” of the family court that would allow hearing examiners and/or support magistrates to hear any matter in the family court.
The legislature has no authority to vest jurisdiction in a hearing examiner to enforce or modify court orders of support and therefore, Family Court Act §439 is unconstitutional.
AG Ship Maintenance v. Lezak, 69 N.Y.2d 1, 511 N.Y.S.2d at 218:
Under the State Constitution the authority to regulate practice and procedures in the courts is delegated primarily to the Legislature (N.Y. Const., art. VI, §30). There are some matters which are not subject to legislative control because they deal with the inherent nature of the judicial function … the court rules must be adopted in accordance with procedures prescribed by the Constitution and statute (N.Y. Const. art. VI, §30; Judiciary Law § 211[b])
The following are just 3 of the many Penal Laws that were violated by the judges!
If the judges cannot state and document how the Legislature has the authority to change the composition of the family court that is stated in the NYS Constitution, they are in violation of Penal law §175.4 Issuing a false certificate a felony. I challenge anyone to state how the legislature had the authority to change the NYS Constitution by adding hearing examiners now support magistrates. Why are the appellate court judges above the law?
§175.40 Issuing a false certificate.
A person is guilty of issuing a false certificate when, being a public servant authorized by law to make or issue official certificates or other official written instruments, and with intent to defraud, deceive or injure another person, he issues such an instrument, or makes the same with intent that it be issued, knowing that it contains a false statement or false information. (Court orders are official written instruments and the judges were intent on defrauding the citizens of NYS of their right to have their support matters heard by a judge and not a non-judicial employee of the court system.)
Issuing a false certificate is a class E felony.
$5000 fine max – 1 to 4 years in jail – 5 years’ probation
The appellate court judges have conspired to oppress the citizens of New York State in the free exercise or enjoyment of any right or privilege secured by them by the Constitution or laws of the United States.
The appellate court judges conspired and continue to conspire to cover-up the illegal use of support magistrates in family court in violation of the state constitution.
Title 18 § 241. Conspiracy against rights of citizens:
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured by him by the Constitution or laws of the United States, or because of his having so exercised the same; or
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.
The US mail was used by the appellate court judges to send letters and the Court Orders and therefore, the appellate court judges have commited mail fraud.
Chapter 63 – Mail Fraud – § 1341 – Frauds and swindles
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * for the purpose of executing such scheme or artifice or attempting to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at a place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both,
The Federal Government has placed the judges in NYS above the law and the FBI used its power to threaten me and tell me they did NOT care about my problems, one being that the support magistrats are illegal as well as my right to a public trial and a jury trial.
Why is the US Attorney’s Office and the FBI’s office in Albany, NY covering up for these corrupt judges? The US Attorney’s office and the FBI have placed the judges and attorneys above the law after consistently declaring no one is above the law!!
Should the US Government take over control of the NYS Judiciary away from the liberal democrats by appointing someone outside of the NYS Judiciary to clean it up? The violation of Constitutional Rights has to end. NO one should be tried, convicted and sentenced to jail in a closed court proceeding and deprived of their constitutional right to a jury trial as well as their other constitutional and statutory rights. (I know, Cuomo, Schumer, Gillibrand and Sneiderman will oppose and they support the violation of Constitution Rights and trials be held in secret (closed) and the litigants being deprive of their constitutional right to a jury trial and we must NOT forget, the oppression of rights of minors. Also, Cuomo, Schumer, Gillibrabd and Sneiderman will protect illegal aliens in NYS, but will NOT protect the citizens of NY and the stripping of their constitutional rights!)
Supporting Documents – Appellate Court
Petition to vacate support magistrate order. Full legal argument.
Support Magistrates & Judicial Hearing Officers (JHO) are illegal (12:22)
You need to know your rights and how to address these issues in court.
Justice4NY – Exposing Judicial Corruption & the Violation of Constitutional Rights
VOTE NO ON NYS CONSTITUTIONAL CONVENTION!!!!!
The politicians will claim it is to protect us, instead it will be used to protect the corrupt judges and politicians. They will lie about what they are going to do and then claim they couldn’t get that passed but instead they get passed what they want without any notification that these issues will be addressed. It is called Bait and Switch.
Charles E. Colllins – available for lectures
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518-274-0380 www.justice4ny.com. Check out my other “scoops” This is scoop #27
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