New York Criminal Attorney Blog
Another compelling reason not to allow the issuing officer to also act as the prosecutor in a New York traffic violation case is supported by the Latin maxim “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. This ancient rule of statutory construction is codified in New York McKinney’s Statutes § 240 titled “Expression of one thing as excluding others”.
Section 240 states in pertinent part: “where a law expressly describes a particular act, thing or person to which it shall apply an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” In other words, where a statute specifically mentions that said statute applies to one category of persons, said statute irrefutably implies the exclusion of other persons not specifically mentioned was intended by the Legislature. See e.g. Combs v. Lipson, 44 Misc.2d 467, 254 N.Y.S.2d 143 (1964)(Holding that the express grant of power to one person excludes by implication the grant of same powers to another.)
Applying this rule to situations where non-attorneys may represent others in New York, if the New York State Legislature enacted a statute which expressly described what class of non-attorneys could represent other people in court, an irrefutable inference arises that those non-attorneys not described in the statute may not represent others in a court or other quasi-judicial proceeding.
Indeed, the New York State Legislature has in fact enacted a law prohibiting a non-attorney from appearing as an attorney except is certain delineated circumstances. New York Judiciary Law § 478, titled “Practicing or appearing as attorney-at-law without being admitted and registered” makes it unlawful for those who have not “been duly and regularly licensed and admitted to practice law in the courts of record of this state” from acting or holding themselves out as attorneys.
The same statute however, goes on to specify certain categories of non-attorneys that may otherwise act in an attorney like capacity despite the fact that they are not duly admitted to practice in the State of New York. For example, law students who have completed two semesters of law school or who are awaiting their bar exam results may, under the supervision of the Legal Aid Society or other government agency such as the District Attorney’s Office, partake in lawyerly activities otherwise prohibited for non-lawyers. Jud. Law § 478
In Section 484 of the Judiciary Law titled: “None but attorneys to practice in the state” the New York State Legislature again reiterated that only duly licensed attorneys may practice in New York but this statute virtually mirrors Jud. Law § 478 by specifically identifying those non-attorneys that may, under proper supervision, perform legal representation otherwise not allowed by non-attorneys. To summarize, law students or those awaiting their bar exam results may appear as attorneys, under proper supervision, for the Legal Aid Society and the District Attorney’s Office.
The most telling exemptions found in both Sections 478 and 484 of the Judiciary Law pertaining to non-attorneys appearing as attorneys is the exemption allowing officers of societies for the prevention of cruelty to animals to appear, under proper supervision, to prosecute appropriate cases. This exemption establishes that the Legislature has specifically authorized a particular law enforcement officer to act in an attorney/prosecutorial like role. Therefore, under the doctrine of “inclusio unius est exclusio alterius”, the Legislatures express inclusion of one type of enforcement officer that may act in a prosecutorial capacity creates an irrefutable presumption that no other law enforcement officer may act in a prosecutorial capacity.
There are numerous other examples of where the Legislature or an agency acting pursuant to Legislative authority specifically authorizes a non-attorney to represent individuals. See for example:
• NY Labor Law § 538 specifically allows a claimant to be represented by a representative who need not be an attorney.
• 18 NYCRR 434.5(d) which allows one appealing a finding of abuse or neglect to be represented by an attorney or other “representative” at a fair hearing.
• 15 NYCRR 124.1(b) which allows a motorist charged with a traffic violation in the Traffic Violations Bureau “the right to the assistance of counsel or other representative”.
It should be noted now 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 doctrine of “inclusio unius est exclusio alterius” as codified in McKinney’s Statutes § 240, the fact that the Legislature specifically allowed certain non-attorneys to act as attorneys infers that the Legislature intentionally excluded other non-attorneys, such as police officers and State Troopers from acting as attorneys.
Clearly, the above statutes and regulations establish that the Legislature has statutorily created certain situations where non-attorneys make act as attorneys. The Legislature however, did not include police officers or State Troopers in these categories. Therefore, there is simply no statutory authority to allow these officers to prosecute their own tickets. That this practice is allowed exemplifies the disgusting and outright terrifying commonplace practice of local criminal courts disregarding the law and bending over backwards to accommodate the prosecution and totally disregard the law.
As I have said in the past, if any sharp attorney were to ever argue the doctrine of “inclusio unius est exclusio alterius” to most local criminal court justices, they would look at that attorney like her or she were speaking in religious Tongues.