The Functional Libertarian
This column was published in the Los Angeles Daily Journal on Tuesday, March 11, 2014
By Judge Jim Gray
Back in 2007 a good friend of mine who lives in Northern California bought a new, expensive and fast car. When his neighbor, who has a similar type of car, noticed it he told my friend that he would now certainly want to make a $2,500 contribution to the California Highway Patrol’s 11-99 Foundation. “Why was that?” asked my friend. “Because that is like buying insurance against being cited by the CHP for speeding or other traffic violations. It has worked form me, my son and numbers of my friends,” was the answer.
So what is the CHP’s 11-99 Foundation? This charitable organization is a completely separate entity from the CHP, but it receives contributions from the public and uses them to provide financial support for widows and orphans of deceased CHP officers, scholarships for deserving dependents, and similar worthwhile activities. Donations in any amount are accepted with appreciation. But those who donate $2,500 or more (plus another $1,000 for a spouse) receive an engraved license plate frame that says “Member, CHP 11-99 Foundation” on it.
Now there is absolutely no question that the family members of deceased officers of this great and professional law enforcement organization should be supported, and a foundation of this kind is a perfectly appropriate group to accomplish that goal. But the furnishing of a license plate frame that will allow all law enforcement officers to see that the automobile owner supports their “families in need,” will at best be misunderstood by the public. And at worst it will appear to be what my friend’s neighbor said it is: an invitation for favoritism in the criminal justice system for people who donate to this cause.
To be honest, I do not know how effective those invitations are in obtaining favorable treatment from CHP officers on our streets and highways. I myself have asked several of them if it makes any difference, and they have consistently denied it. But even the thought that these objects might work in even a few cases, or even appear to work, is enough to require that this part of this otherwise worthwhile program be disbanded.
So, armed with this concern back in 2007, I contacted the Hon. Joe Farrow, the Commissioner of the CHP, and talked to him about this situation. He responded that his troops are continually and firmly trained and instructed that they should play no favorites regarding this issue, or any other. But he also shared my concern about the appearance of favoritism, and promised to do what he could to persuade this independent organization to stop issuing these license plate frames.
And, to his strong credit, he was successful. So by early 2008, this practice was terminated.
But since that time the controlling membership of the 11-99 Foundation has changed and, for about the past year, people who make at least $1,500 contributions to that fine organization will receive the same license plate frame (without the name “CHP”). And so we are back into the same situation in which many people feel that people who make these contributions receive favorable treatment. And, whether it is actually true or not, I hope you will agree that even the perception of such a situation can do intolerable harm to our criminal justice system.
Of course, as a practical matter, we will never run out of worthy causes for which donors could be considered for favorable treatment from government agencies. For example, if we follow this lead, soon the California Franchise Tax Board could be perceived to be giving favorable interpretations on close tax questions to donors who support their agents’ children’s scholarship fund, or a county board of supervisors could be seen as giving the “benefit of the doubt” and approve land development projects for those who donate to the supervisors’ “pet charities.”
You might also not be aware that we judges are ethically prohibited from informing law enforcement officers about our status under circumstances in which that knowledge might affect the officers’ decisions about issuing a traffic citation to us or not. But that was not always the situation, to the degree that when I first became a judge back in 1983 I was offered a wallet with a judge’s badge right across from where I carried my driver’s license.
But, fortunately, times and morays have changed, and I believe that restrictions of this kind are fully appropriate, and an overwhelming majority of judges understand and embrace those restrictions as well. But should not the same standards be applied to supporters of even such worthwhile programs as the 11-99 Foundation?
Of course, we also know that sometimes it is hard to draw the line. For example, I have a small “organ donor” sticker pasted right on the front of my driver’s license. Does this mean that under certain “close call” circumstances I might be treated with more deference by a police officer than someone without it? Probably not, but possibly so. I know that there is a socially justifiable reason for that sticker to be there, and I never really focused upon this issue until I began thinking about writing this column. In addition, I really think that the chances that this sticker would even be noticed by an officer, much less be the cause of any special favoritism, would be miniscule. So should I take the sticker off just to be sure? No, it is still there.
But seemingly there is no reason for the CHP to provide license plate frames except to provide an opportunity for favorable treatment. Of course this is a legitimate organization commendably addressing a community need. Furthermore, the CHP officers I have encountered appear to be fine individuals who routinely provide a difficult and much-needed community service, often without sufficient appreciation by the public they serve. But at the end of the day, no matter how fine the organization, improper influence is just that: improper.
Of course, we all know that life can be complicated and difficult to change. But here we have a specific area of ostensible inappropriate influence peddling that can and should be fixed right now. Accordingly, I request each of you to join me in doing whatever we can to cause the following three results to be realized:
1. The practice by the CHP’s 11-99 Foundation of providing any form of object that can be used to call the attention of law enforcement officers to the identity of its donors be immediately curtailed;
2. Officials at the highest levels of the California Highway Patrol continue to be encouraged to instruct all of their officers that they are not in any way to be affected by the presence of such information if it is encountered; and,
3. Those people who now have those license plate frames on their cars be encouraged – as a matter of personal integrity – to remove them.
Some unintended consequences of discussing a program like this publicly could be that, by calling attention to it, we could actually start a “cottage industry” of people who would steal the license plate frames and sell them to others who would hope to benefit from some special treatment. Other results could be that people who did not otherwise know about the program now would make the requisite contributions so that they too might hope to receive some special treatment. And, finally, it is possible that some members of the CHP who might view this article will see it as an example of the public’s lack of appreciation of the invaluable services they provide, sometimes at the risk of harm, or worse. I hope not to be the cause of any of those results.
But equal justice under the law cannot exist in a climate that confirms some people’s already jaded view that justice in our society can be bought. As such, please take it upon yourself to do everything you reasonably can to help do away with even the hint that any influence peddling is occurring today in any fashion with the California Highway Patrol.
James P. Gray is a retired judge of the Orange County Superior Court, a mediator with ADR Services, Inc., the author of “Wearing the Robe: the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2009), and the 2012 Libertarian candidate for vice president, along with Governor Gary Johnson as president. Judge Gray can be contacted at JimPGray@sbcglobal.net.