By Randy Bartley | Posted: Wednesday, July 23, 2014 7:55 am
BROOKVILLE — Monday Senior Judge John B. Leete denied a motion that he recuse himself from a suit filed by James B. Wicker against Jefferson County Sheriff Carl Gotwald.
The issue raised in the recusal hearing was the same as in the suit: The failure of an elected official to take the required oath of office.
Attorney Daniel A. Pallen of Media said that while Judge Leete had taken the oath of office while he served as an elected judge in Potter County he had not taken an oath when he was appointed as a Senior Judge by the Pennsylvania Supreme Court.
Pallen argued that as Judge Leete had not taken an oath that he could not hear a case that revolved around the current Jefferson County Sheriff not taking an oath.
Judge Leete denied the motion basing his authority on his appointment by the Supreme Court.
The Judge said he had received at 8:30 a.m. Monday morning.
In the original case, Pallen and Cotwald’s attorney, Nicholas Gianvito made preliminary arguments Monday.
Wicker alleges in his suit that Gotwald “has refused to take the proper oath of office as described in the Constitution of the Commonwealth and the County Code of the Commonwealth of Pennsylvania.” Wicker has filed a writ of “quo warranto” to “oust” Gotwald.
A quo warranto writ means “by what warrant?” and is a prerogative writ requiring the person to whom it is directed (Gotwald) to show what authority they have for exercising some right or power (or “franchise”) they claim to hold.
Pallen asserts Gotwald should have taken two separate and distinct oaths of office, the “Constitutional oath” and the “county code oath.”
The constitutional oath is commonly heard during swearing in ceremonies and required the oath taker to “...support, obey and defend the Constitution” of both of the United States and the Commonwealth.
The “county code” requires that in addition to any other oath required by “other act of Assembly, all county officers, their deputies, assistants and clerks shall, before entering on the duties of their respective offices or employments” take an addition oath.
That oath adds language that specifically details what money and office holder can receive, or spend beyond normal compensation.
Gotwald was elected in 2008 and defeated Wicker in the Republican primary in 2011. He was reelected to office in Nov., 2011.
Wicker alleges that Gotwald filed an oath “purporting” to be in accordance with the County Code Oath in 2008 but no other oath was filed. Wicker also alleges Gotwald took only the constitutional oath in 2012.
“By refusing to take the proper oath of office in 2008, the defendant has forfeited his office,” states Wicker’s suit.
Wicker further alleges that as Gotwald failed to take the constitutional oath in 2008, his victory in the 2011 election over Wicker is a “nullity.” Wicker claims he should be placed in office as a result of Gotwald’s “omissions and refusals.”
Gianvito said Wicker had a “lack of capacity to sue” because both oaths contain the exact same language within the first sentence. He added that there is no legal requirement for Gotwald to verify twice during an elected term that he will “support, obey, and defend.....”
Gianvito said that to overturn the election would lead to anarchy.
Wicker states in his suit that he mailed a demand to Pennsylvania Attorney General Kathleen Kane and to Jefferson County District Attorney Jeff Burkett that there be a trial on Gotwald’s capacity to hold office. Neither the AG or DA responded to Wicker’s letter.
Judge Leete said he would issue a written opinion on the case.