Tuesday, April 11, 2017

Judicial Self-Promotion

Playing the "judge card" is a phrase that I hear from time to time. I have heard stories about various judges allegedly interjecting their profession or status into situations, in the hope of receiving treatment from others that is different that what the public generally might enjoy. These are anecdotal. But, if it never happens it is curious that these anecdotes are told. 

Judges in Florida are bound by the Code of Judicial Conduct. It has implications regarding the treatment of judges. Each state has such a Code, and each is subject to interpretation within that state. As a result, there are likely to be inconsistencies both in the Codes and the interpretations and enforcements. 

Two portions of the Florida Code are worthy of consideration in this discussion. Canon One says "an independent and honorable judiciary is indispensable," and that "enforcing high standards of conduct," is important, as is personal observation of high standards. In other words, judges should set an example, an honorable example.

Canon Two says "a judge shall respect and comply with the law." Judicial behavior should "promote public confidence in the integrity and impartiality of the judiciary." A judge "shall not lend the prestige of judicial office to advance the private interests of the judge or others." This Canon is what prevents judges from appearing in fund-raising activities and events. 

How might the "prestige of judicial office" be used to advance the judge's own interests? How about to get out of a traffic ticket? I have heard stories of judges who keep their driver's license in a wallet that also displays judicial credentials (I have heard similar stories about police officer's display of a badge). Opening the wallet to retrieve the license "coincidentally" exposes the badge or other credentials to casual view. But what if a police officer knew the stopped vehicle driver was a judge before the license was ever seen?

I ran across this vehicle during spring break in a Florida tourism destination, and it made me think about the Canons. 

Just above the plate number on this Texas plate, in bold letters, is the phrase "STATE JUDGE." That frankly shocked me. First, because a great many judges spurn public attention, and such a plate instead may attract it. Second, the license plate made me think because a Florida judge making such a display would seem to run afoul of the Canons discussed above. What could be the point of identifying oneself as a judge on a license plate? I found myself repeatedly thinking about this, and it led me to do some research. 

I was not alone. It turns out the New York Commission on Judicial Conduct issued a report on this very topic in 2013. Four Judges and six attorneys compiled a 65-page report focused on judicial license plates. It addressed two main questions: (1) "what goals are advanced by the issuance of judicial license plates," and (2) "are there potential negative consequences that outweigh whatever good such plates may promote."

The study grew from a decision in 2012, in which the Commission removed a magistrate from office. in New York, there are judicial license plates similar to the one pictures. There is also a license plate available that identifies the car owner as a member of the "State Magistrates Association." At one time that plate option apparently reflected merely "SMA," but later the official seal or emblem of the association was added. Present and former magistrates and town justices are eligible for SMA membership and therefore for the SMA license plate. 

The removal of the New York magistrate involved Judge Schilling. The judge was issued a ticket by the Highway Patrol. In a second incidence, the spouse of a second magistrate was ticketed by a municipal police officer. Each driver's vehicle displayed the "SMA" license plate, publicly suggesting the driver's office or connection to judicial office. However, neither driver verbally informed the ticketing officer of judicial office or relation to judicial office holder. 

The State Trooper, after citing the magistrate, "visited Judge Schilling and retrieved the ticket, which effectively disappeared from the law enforcement and court systems." In the second instance, Judge Schilling learned of the other magistrate's spouse's ticket and "set in motion a process by which every copy of the ticket disappeared, except the one issued to the motorist." The judge received special treatment and provided special treatment based upon judicial office. 

The Commission concluded that it was appropriate to remove Judge Shilling from office for these offenses. It also concluded that ticketing of judges is an issue in New York, based upon this investigation and what it had learned "over the years, in the course of investigating other complaints of ticket fixing."

The NY Judicial Commission concluded that there is at least the "potential appearance" that judicial license plates "may contribute to a judge getting an unwarranted break," and thus it took up the investigation and issued this report. It noted that New York is one among 12 states total that allow this "vanity" license plate practice. It is not uncommon for New York judges; "424 state-paid judges," "1,832 members of the SMA" and "nine judges of the federal courts" were reported as having such "special plates," including two of the four judges on the Commission. 

In preparing its report, the Commission polled a sizable population for comment and commentary. It noted that some challenged the Commission's authority to address the topic, some criticized the "vanity" plate practice, and several "proposed rationales for" the plates. The rationales included pride in being a judge, facilitating parking, state revenue, and encouraging judges to drive responsibly. Opposition noted security concerns and that such plates "help to evade citations for speeding, parking and other violations."

The Commission concluded that "there is no question that a judge should be disciplined for raising his/her judicial status to avoid" consequences or a ticket. That is, a judge could not tell a police officer about being a judge to avoid a ticket. It concluded, however, that "displaying a judicial license plate on a personal vehicle does not per se create an appearance of impropriety." It cautioned judges to "weigh the pros and cons carefully before opting to display" such a license plate, and that judicial education on the topic would be worthwhile. 

An attorney member dissented from the "Commission's milquetoast Report." He characterizes the availability of such plates, in the face of prohibitions on receiving "special treatment" leads to a "schizophrenic message" to judges that "leads to bizarre scenarios." He cites examples of judges stopped for driving under the influence and being driven home instead of arrested. He cites the Magistrate Schilling example of a trooper returning to retrieve a ticket (how many of you have earned a ticket, but had the officer later come to your home to retrieve it?). He contends that such plates and the inevitable results contribute to the "inescapable public cynicism" that emanates from such stories. 

A Judge member of the Commission wrote to respond to this attorney. He notes that a Commission conclusion that such plates are improper implies that they have always been improper, and thus that hundreds of New York Judges "would be at risk or potential disciplinary proceedings" for having displayed them. That argument is about as convincing as the "all the kids are doing it" argument that failed to convince mom so many times while I was growing up. The Judge also argues that the judge's intent in procuring and displaying such a plate should be more important than any effect of such plates. One wonders if the intent of a judge telling a police office of judicial position would likewise be more important than the effect, from the perspective of this Commission member?

In the end, it is an interesting debate. It is fortunate that Florida does not allow such displays, and more fortunate that it does not enable such behavior through an available vanity plate. It is conversely unfortunate that 12 states allow and and facilitate such behavior. Having considered the various arguments justifying the practice, I remain unconvinced that any justifications even come close to outweighing both the inappropriate effect of such plates or the negative impact they potentially create with the public. 

Judicial vanity plates, or any similar public display, simply has no positive effect. Such displays are at worst an exploitation of public office to advance the judge's "private interests." At best, they are less than honorable and do not "promote public confidence in integrity and impartiality." That some behavior, such as these plates, has been tolerated or even promoted historically is no justification for it to continue. American history is replete with examples of re-thinking implications and altering the law accordingly. 

Hopefully such license plates and other similar public displays will diminish. Their loss will cause no harm. Their presence causes no benefit and may either support or promote public cynicism or distrust of our judicial system, which system is critical to the very foundation of our land of laws. Playing the "judge card" is inappropriate, and it does not become less so because it is on a license plate. 

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