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What’s in a title? You be the judge

Judges judge and justices administer justice.

Judges may also administer justice while justices judge. And which one you call the person wearing the robe behind the bench in court won’t matter much to most, but there is a difference.

“The distinction comes actually from the Constitution of the State of New York,” said Justice Henry J. Scudder, the presiding justice of the Appellate Division, Fourth Department, who is often called judge.

Justice Scudder is the senior judge of the 22-county Fourth Department and one of the highest-ranking judges in the state.

He said those hearing cases in the lower town and village courts are properly called justices. The next level — county, family and surrogates courts — are presided over by judges, and courts of general jurisdiction, the supreme courts, are by justices.

“The appellate divisions are justices because they are the Appellate Division of the Supreme Court,” he said, noting those sitting on the state’s highest court — the court of appeals — are judges.

“I don’t know the origin other than when the Constitution was drawn up, for some reason, they decided on the terms justices and judges for some of the courts,” Justice Scudder said. “I haven’t researched it as to why they came up with that.”

He said he doesn’t correct anyone when they call him judge, but that technically it is incorrect.

Justice Scudder said it gets interesting when you have a county court judge that is an acting Supreme Court justice.

“In the morning, if you’re doing Supreme Court work, you’re a justice,” he said. “But, in the afternoon, if you’re doing county court work, you’re a judge. I don’t know why that is.”

Then there are the magistrates. On the federal level, they are Article I judges who serve in courts established under Article I of the U.S. Constitution. They are appointed by a federal district court for an eight-year term. They assist district judges in preparing cases for trial and may also conduct trials in certain circumstances.

The Article III judges are appointed for life by the president, with Senate confirmation.

It is simpler on the federal level.

U.S. District Judge William M. Skretny, chief judge of the U.S. District Court for the Western District of New York, said the term justice is reserved for the U.S. Supreme Court. The remaining judges are called judges.

On the local level, the town and village justices are also considered magistrates — a throw back to English courts. They were formerly known as a justice of the peace.

Not too long ago, according to the New York State Magistrates Association website (http://nysmagassoc.homestead.com), local justices were also members of the Town Board, playing an integral part in the day-to-day operation of town government, but were separated for ethical reasons.

 “Town justice was a term created by the Legislature back when they took the justices of the peace off the board,” said NYSMA President H. John Kramer of Delaware in Sullivan County. “The magistrates had been around for 100 years and that predates me. I know the old timers refer to us as a justice of the peace if they call to have a wedding or something. I guess some people are offended by it, but it doesn’t bother me. I know the history of it.”

Kramer, like many town justices, is not an attorney. He is a retired auditor. Do those admitted to the bar have less respect for justices who are not?

“I think on that, it’s not automatic,” said attorney Bryan D. Hetherington, chief counsel at the Empire Justice Center and president-elect of the Monroe County Bar Association. “It has a lot to do with how that person handles him or herself in the business of whatever judging they do. Some lay justices do a really good job and some of them don’t understand some of the basics of due process that get inculcated into lawyers as part of the education process.”

He said it becomes apparent sometimes when scanning through some of the disciplinary decisions of the State Commission on Judicial Conduct.

“You look at these things and just slap your forehead and think how could a judge not know you can’t adjudicate a matter involving your brother-in-law?” Hetherington said.

He often appears before both judges and justices in the various levels of courts and said it gets particularly interesting during election season.

“It’s a funny system that you have town justices running for county court judges and then you have county court judges who are running to be supreme court justices,” he said. “It’s a confusing system.”

That is exactly what happened in November. For instance, three of the new Monroe County Court judges — Judges Vicki Argento, Vincent Dinolfo and James Piampiano — were all serving as part-time town justices before getting elected to the higher court.

“All of it is just another indication of this crazy quilt system that we have,” Hetherington said. “Many people have argued for decades that we ought to do what New Jersey and California and other states have done to realign the system and make it more understandable and rational, but that would take a constitutional amendment.”

Monroe County Supreme Court Justice Evelyn Frazee, who served on the Special Commission on the Future of New York Courts, said lot of the confusion comes from the fact that New York has 11 trial courts, but that terminology was not considered in the study.

She said she believes the title is up to the individual. She is fine with either judge or justice, but said some do have a preference.

Justice Frazee said she will not correct any attorneys who may call her judge, but thought of one in particular — Robert M. Shaddock of Hiscock & Barclay — who always calls her justice.

“He’s always very formal about what’s formally the correct title,” Justice Frazee said. “To my knowledge most judges don’t correct somebody. I don’t think people get too concerned as long as there is the proper respect.”

Justice Frazee admitted even she gets confused sometimes.

“It is the sort of thing you look up every once in awhile,” she said.