A long-awaited report by the Commission on Judicial Conduct on whether judges should have special license plates on their personal vehicles concludes there is nothing inherently unethical about a judge publicly displaying his or her position, even though it may result in preferential treatment.
The commission said yesterday that it "has not and will not discipline" judges for putting judicial plates on their personal vehicle, but sent a cautionary message restating what was already clear: Judges cannot use their status to avoid the consequences of traffic or other infractions.
The goal of issuing the report, the commission said, "is to inspire a more expansive examination of the broader issues implicated by the use of such plates," prompting a blistering dissent from one member who accused the majority of "ducking" the issue.
The report mirrors an opinion issued in September by the Advisory Committee on Judicial Ethics and offers no new guidelines or rules. It comes one year to the day after the panel recommended removal of a town justice for ticket fixing and promised, in a footnote, a report on the widespread use of judicial license plates.
Last May, Diane Schilling, a part-time justice of the East Greenbush Town Court, Rensselaer County, and a court system attorney, resigned after the commission called for her removal for fixing tickets that had been issued to drivers of cars with license plates bearing the "SMA" acronym of the State Magistrates Association. The organization is comprised of current and former town and village court justices. One of the tickets had been issued to Schilling herself, the other to the wife of another judge.
In both cases, records show, the tickets were issued by relatively inexperienced police officers who only later learned the significance of SMA plates. Schilling ensured that the ticket issued to the other judge’s spouse "disappeared," according to the commission. The ticket that had been issued to Schilling was retrieved by a state trooper who, after ticketing her for speeding, learned what "SMA" means, records show.
In its determination in the Schilling matter, the commission said the case illustrated a "stark example" of the problem of judges using their influence to fix tickets. The panel said in a footnote that it had "decided that a public report is required to address the issue of whether or not the Rules Governing Judicial conduct may be violated by the use of judicial license plates" (NYLJ, Aug. 27, 2012).
Over the past several months, commission staff investigated the issue. It learned that 424 of the approximately 1,200 state judges, plus 1,832 members of the State Magistrates Association, have tags identifying them as a current or former member of the judiciary.
The commission invited more than 200 court officers, law enforcement authorities and various judicial, bar and civic organizations to weigh in. It also invited public comment on its website. But only nine organizations and nine individuals responded.
Proponents of the plates told the commission that the special tags enhance safety when judges conduct after-hours/off-site arraignments, serve as a parking pass in courthouse lots and allow judges to display pride in their profession.
Opponents said the plates could endanger judges, argued that simple parking placards would suffice if the judge needs to get into a government lot or park in a designated spot, and contended that the plates raise a specter of impropriety and preferential treatment.
Two of the four judges on the commission, Thomas Klonick, a justice in Monroe County and chairman of the panel, and Court of Claims Judge Terry Jane Ruderman (See Profile), the vice-chair, have judicial plates on their personal vehicles. Two others—Justice Rolando Acosta (See Profile) of the Appellate Division, First Department, and Court of Claims Judge David Weinstein (See Profile)—do not.
While the commission was conducting its study, the Advisory Committee, chaired by retired First Department Justice George Marlow, issued Opinion 12-141 (NYLJ, Sept. 24, 2012) in response to a query from a judge about the propriety of specialty plates.
The advisory committee noted that vanity plates identifying the motorist as a judge are perfectly legal (VTL §404 authorizes special license plates for public officials), and said simply displaying the tag does not violate any ethical standard. That opinion complicated the matter somewhat since the commission has never disciplined or even cautioned a judge who had relied on the advice of the advisory committee.
Yesterday, the commission released a 14-page report, followed by an 11-page dissent, which was followed by a nine-page concurrence.
In its report, the commission said it has known for years that judges displaying judicial plates sometimes get a break from police. It suggested that with the license plates, judges can make their status known to the officer without saying a word and potentially violating the ethics code.
"The Commission has been advised by law enforcement officers in various parts of the state that at times they have declined to issue tickets to motorists whom they stopped for speeding, once they realized by virtue of the license plates that the drivers were judges, even where the motorist made no reference to his or her judgeship," the commission said. "Numerous officers have told the Commission that they themselves raised the subject, asking if the stopped motorist or his/her spouse was a judge."
But the commission said that while it is obvious that judges cannot invoke the prestige of their office to avoid tickets, there is no way to determine the extent to which the specialty tags discourage police officers from ticketing the motorist in the first place. It concluded that displaying a judicial tag does not create an appearance of impropriety per se, but cautioned judges to "weigh the pros and cons very carefully" before opting to use the special plates.
Commissioner Richard Emery, a partner with Emery Celli Brinckerhoff & Abady, dissented forcefully, and would have banned judges on ethical grounds from displaying license plates.
"Though judges are unequivocally prohibited from using their judicial status to obtain special treatment for themselves, their families or friends, they are legislatively authorized to flaunt their judicial status on their personal vehicles wherever they go," Emery wrote. "This schizophrenic message inevitably leads to bizarre scenarios involving special treatment being afforded and accepted by judges."
Emery said he sees no difference in a judge who proclaims his or her status on a license plate and one who flashes a judicial ID when stopped by a police officer. He accused both the commission and the advisory committee of evading the issue.
"Absent a reasoned and persuasive position for its conclusion, the Advisory Committee did nothing more than appease those judges who, in an effort to keep their plates, want the Committee to bind the hands of the Commission," Emery wrote.
Marlow was not immediately available for comment.
Emery observed that in the Schilling case, the rookie police officer who ticketed the judge’s wife, "oblivious to the significance of an ‘SMA’ license plate," was ridiculed by his colleagues.
"Had he only known what ‘SMA’ signified and had time to learn that knowing the ‘ropes’ means judges don’t get speeding tickets, he would have avoided humiliation by not issuing the ticket in the first place," Emery wrote. "He learned his lesson. He will never again fairly enforce the law."
Weinstein, in response to Emery, said he shares his colleagues’ concerns, but opposes "a blanket condemnation on self-identification of judges through specialized tags even when there is no evidence at all that such identification is part of an effort to advance the judge’s interest."
He said such a drastic measure is unwarranted, especially in light of the fact that in the 35-year history of the commission, the Schilling case is the only one that directly involved the use of a judicial license plate.
Additionally, Weinstein said that if the commission declared the use of judicial plates a per se ethical violation, it would create the "odd spectacle" where some judges could face disciplinary actions for using the tags while others, simply because they requested guidance from the Advisory Committee, would be immune.
"Adoption [of Emery's position] would require [the commission] to both reject the position of the Advisory Committee on Judicial Ethics, and ignore the clear intent of the Legislature," Weinstein wrote. "To do so would not simply be wrongheaded in this instance; it would have significant and negative implications for the whole structure for judicial ethics oversight."
The report is unusual in that while the commission is authorized under Judiciary Law §42(4) to make administrative and legislative recommendations, it rarely does so except in its annual report.
One judicial branch employee said the commission, by issuing the report, exceeded its "scope, expertise and mission."
But Robert Tembeckjian, the commission’s administrator and counsel, said the agency’s authority to make recommendations is clearly outlined in statute.
@|John Caher can be reached at email@example.com.