The simple fact is, the practice of the issuing officer prosecuting their own New York traffic tickets is allowed only because of an outright Judicial hijacking by the court’s of the State Legislature’s power. Generally, the New York State Constitution establishes that the Legislative Branch (consisting of the New York State Assembly and New York State Senate) enact the laws (with the consent of the governor) (see NY Const. Art. 3, § I).
The New York State Executive branch enforces and carries out the laws enacted by the New York State Legislature (See NY Const. Art. IV) and the New York State Judiciary branch interprets and applies the laws enacted by the Legislature (NY Const. Art. VI). It is not the function of the Executive and/or the Judiciary branches to create laws.
This division of powers and responsibilities is commonly known as the “Separation of Powers” doctrine most of us learned about early in our scholastic careers. The “Separation of Powers” doctrine is a bedrock principle in this country as well as in New York. Each branch of government should be free to carry-out its lawful duties free from the improper interference from the other branches of government. New York State Inspection, Sec. and Law Enforcement Employees, Dist. Council 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 485 N.Y.S.2d 719, 475 N.E.2d 90 (1984).
Therefore, whether they agree with the law or not, law enforcement (which is part of the Executive Branch) must enforce a law duly enacted by the Legislature. For example, it’s not for law-enforcement to decide that drugs should be legal and refuse to enforce our drug laws. Similarly, absent some constitutional infirmity, judges are bound to impose and interpret the laws as written by the Legislature whether they agree with them or not.
Applying the Separation of Powers Doctrine to attorney admissions to practice law in New York, it is the New York State Legislature that has the unrestricted power to determine the procedures and by what evidence the qualifications for admission as an attorney to the New York State Bar should be ascertained. In re Cooper, 22 N.Y. 67 (1860). In fact, in Cooper, the Court of Appeals noted that the authority and power to admit attorneys to practice in the State of New York is not an inherent power of the courts but is entirely subject to legislative action.
Granted, the Legislature may statutorily delegate certain aspects of attorney admission procedures and discipline to the Courts (as they have done), but the ultimate determination of who may practice as an attorney in New York rests with the New York State Legislature.
In other words, while the New York State Judiciary may be vested by the New York State Legislature with the power to, among other things, oversee attorney qualifications, attorney conduct, implement discipline and regulate attorney advertising, the New York State Judiciary possess such power only by virtue of statutes enacted by the Legislature. For example, the New York State Legislature has enacted Judiciary Law § 53 which specifically confers certain rule making authority concerning the admission of attorneys in New York State on the Court of Appeals. But recall, the rule making authority of the Court of Appeals exists only because the Legislature statutorily authorized it.
Accordingly, the Judiciary may not simply unilaterally decide that some non-attorneys may act as attorney or prosecutor without specific Legislative authorization. And the Legislature has statutorily authorized certain circumstances where non-attorneys may act as attorneys.
In upcoming blogs, I will discuss the certain circumstances where the Legislature has specifically authorized non-attorneys to act as attorneys. It should be noted here however, that the Legislature, while authorizing non-attorneys to act as attorneys in certain circumstances, has never authorized the officer who issued the traffic ticket to act as a prosecutor.
Under the rules of statutory construction, the fact that the Legislature specifically allowed certain non-attorneys to act as attorneys infers that the Legislature intentionally excluded other non-attorneys from acting as attorneys, including officers who issued the New York traffic ticket. This is referred to in Latin as “inclusio unius est exclusio alterius”. What this Latin Maxim means is that where a law expressly describes a situation where it applies, an irrefutable inference arises that what was excluded or omitted was intentionally excluded or omitted. McKinney’s Statutes section 240; Golden v. Koch, 49 N.Y.2d 690, 427 N.Y.S.2d 780, 404 N.E.2d 1321. In other words, by the Legislature statutorily describing specific non-lawyer individuals that may act as an attorney, none of which are ticket issuing police officers, there arises an irrefutable inference that the Legislature did not want the ticket issuing police officers to act as attorneys/prosecutors.
For the Court of Appeals to hold that officers can prosecute their own tickets (People v. Soddano), they have ignored the long standing rule of statutory construction, “inclusio unius est exclusio alterius” and judicially added police officers to the very limited group of non-lawyers the Legislature has decided can represent others. Such judicial activism and law-making by judges should frighten all of us. Separation of Powers means nothing if the judiciary takes it upon itself to reign supreme. Its judicial review – not judicial supremacy.