15 December 2016

What Criminal Court Authority Do Non-Lawyer Judges Have?

Though it may seem surprising that judges in all of America’s courts do not necessarily need to be lawyers, the practice is fairly common. Thirty-one states have some courts where judges do not have to be a lawyer. In nine of these states that allow non-lawyer judges, along with the 19 states and the District of Columbia that require all judges to be a lawyer, the non-lawyer judges are banned from taking a defendant’s liberty in a criminal proceeding.
The remaining 22 states, primarily for reasons of cost efficiency or to facilitate justice in more rural jurisdictions, have non-lawyer judges preside over misdemeanors or ordinances that carry jail time as a possible punishment. But even among those states, 14 of them give the defendant the right to have a trial de novo on appeal – basically a whole new trial – before a judge who is a lawyer. That leaves the eight states — Arizona, Colorado, Montana, Nevada, New York, South Carolina, Texas, and Wyoming — where a defendant can stand trial before a non-lawyer judge on a jailable offense, and if he is convicted and sentenced to jail, his only recourse is to appeal to a higher court with a judge who is a lawyer. But that appeal is based solely on whatever record was made in the non-lawyer court; he does not get a new trial.
As explained in the Montana cert petition, “In North v. Russell, 427 U.S. 328 (1976), the Court held that the Due Process Clause permits a criminal defendant facing the possibility of incarceration to be tried by a non-lawyer judge — so long as the defendant has the right to a de novo trial before a judge who is a lawyer.” But the U.S. Supreme Court has never decided whether it is okay for a defendant to be tried by a non-lawyer judge where a state does not give the defendant a new trial on the appeal to a court whose judge is a lawyer. And that is the issue that the Montana lawyers are seeking to have the U.S. Supreme Court decide.
From here.

The body of the certiorari petition further explains that:
Today, no state allows non-lawyer judges to try felony cases. Of the 22 states that allow non-lawyer judges to try misdemeanors that can result in imprisonment, most give the defendant the right to a de novo trial before a judge who is a lawyer. There are only eight states that still allow non-lawyer judges to try such misdemeanor cases without giving the defendant an opportunity for a de novo trial before a judge who is a lawyer. In five of these eight states (Colorado, Montana, Nevada, New York, and Texas), nonlawyer judges have this power only in certain counties. In two (Arizona and Montana), non-lawyer judges have this power only for misdemeanors punishable by six months imprisonment or less, and in one (South Carolina) they have this power only for 9 misdemeanors punishable by thirty days imprisonment or less.
The scope of the challenge in this case is narrow:
The issue is narrow, however, in two senses. 
First, the practice we are challenging represents only a tiny slice of the work of non-lawyer judges. The Due Process Clause does not bar non-lawyer judges from doing all the other things they do—trying traffic violations and other minor criminal matters that do not entail incarceration, presiding over small civil cases, conducting preliminary hearings, issuing warrants, performing marriages, and so on. Nor does the Due Process Clause bar non-lawyer judges from trying, in the first instance, misdemeanor cases punishable by incarceration, so long as the defendant may obtain a de novo trial before a judge who is a lawyer. Nonlawyer judges still have important roles to play in the states’ legal systems. 
Second, the practice we are challenging survives only in three states and parts of five others. All the other states guarantee defendants facing incarceration a trial before a judge who is a lawyer. So did Montana, for more than a century. In these states, moreover, it is likely that, as in Montana, some of the judicial positions not required by statute to be staffed by lawyers are nevertheless currently occupied by lawyers. If the Court holds that due process in these cases requires a judge who is a lawyer, the Court’s decision would require only a modest change to current practice.  
The impact of the case in Colorado would be pretty minimal. 

There were only four non-lawyer judges in Colorado the last time I checked, each serving in a county court (whose jurisdiction is limited to misdemeanors and arraignments), in rural counties. All of them are selected on a merit basis, are at least college educated and receive meaningful judicial education. And, a slight tweak to the nature of the appeal right in the very small percentage of criminal cases that do not result in a plea bargain before these four judges, to make the arrangement constitutional, would be a straightforward step for the Colorado General Assembly to take.

Notably, municipal court judges in Colorado, while arguably further down the judicial hierarchy than county court judges, must generally be lawyers.

In Montana, the state at issue, there are seven non-lawyer judges in courts of record whose decisions are not appealed with trials de novo out of eleven judges in the eight of 56 Montana counties that have made their "justice courts" into courts of record that are not appealed de novo (something that did not exist from 1895 to 2003 in Montana). As of 2011, city courts were allowed to follow suit in Montana and five cities created city courts of record, each with a single non-lawyer judge.

Both cases brought before the U.S. Supreme Court from Montana that are at issue here were tried before one Park County non-lawyer judge:
The judge in both trials was Park County’s elected Justice of the Peace, Linda Budeski. Justice Budeski is not a lawyer. According to her campaign materials, before becoming a judge she spent 24 years as a cashier and meat wrapper at a grocery store, and six years as a prevention specialist for a chemical dependency program. Re Elect Linda Budeski for Justice of the Peace (http://goo.gl/yz4BX6). 
Montana requires Justice Budeski, like others in her position, to attend two kinds of training sessions. First, every four years, after each election, justices of the peace must complete a four-day “certification” course, where they receive training in some of the fields they will encounter on the bench. These topics range from introductory matters like “The Basics of Law” and “Judicial Demeanor” to more specialized areas like Courts and Jurisdiction, Constitutional Law, Initial Appearances, Evidence, Search and Seizure, Landlord-Tenant Law, Criminal Procedure, Orders of Protection, Civil Procedure, Traffic Law, Legal Research, Court Financial and Docket Management, Small Claims, Youth Offenders, and Contracts. Second, justices of the peace must attend two annual continuing education sessions. Mont. Code § 3-10-203(2). These sessions must provide a total of at least fifteen hours of training per year. Montana Judicial Branch, Judicial Education (http://courts.mt.gov/cao/ct_services/jud_ed). 
Montana’s non-lawyer justices of the peace thus begin their careers after a four-day training course consisting of approximately 28 hours of study. To put that in perspective, one cannot become a manicurist in Montana without at least 400 hours of study. Mont. Admin. R. 24.121.601(3)(e)(ii). To become a barber in Montana requires at least 1,500 hours of study. Mont. Code § 37-31-304(2)(a)(ii). Montanans wishing to practice cosmetology need 2,000 hours of study. Id. § 37-31-304(3)(a). That is 71 times as much training as it takes to become a justice of the peace and sentence defendants to incarceration. 
The situation is much more serious in New York, where non-lawyer judges are elected, rather than selected on a merit basis, there are far more non-lawyer judges, and there is a long history of troubling conduct by non-lawyer judges in criminal cases in the state.

I'm not familiar enough with the situation in the other six states to know what impact it would have.

Of course, the U.S. Supreme Court isn't required to take the case, and the outcome of the case if it did take it to resolve this basis issue of constitutional law is unclear.

A Footnote On The Gentry

The Montana cert petition linked above makes an interesting observation that in English law, Justices of the Peace had to be members of the gentry which Wikipedia explains in the British context as follows:
The British upper classes consist of two sometimes overlapping entities, the peerage and landed gentry; any male member of either may regard himself as a gentleman, in a special sense mutually understood between hereditary members of the class, which will often exclude life peers. In the British peerage, only the senior family member (typically the eldest son) inherits a substantive title (duke, marquess, earl, viscount, baron); these are referred to as peers or lords. The rest of the nobility are referred to as landed gentry (abbreviated "gentry"). Except for the eldest sons of peers, who bear their fathers' inferior titles as 'courtesy titles' but for Parliamentary purposes counted as commoners, they usually bear no titles apart from the qualifications of esquire or gentleman (which are ranks recognised in law, although now without any legal consequence); exceptions include the baronet (a title corresponding to a hereditary knighthood), those that are knighted (for life, called Sir X Y), Scottish barons (who bear the designation Baron of X after their name),[17] and Scottish lairds (whose names include a description of their lands in the form of a territorial designation).[18] 
The term landed gentry, although originally used to mean nobility, came to be used for the lesser nobility in England around 1540. Once identical, these terms eventually became complementary. The term gentry by itself as commonly used by historians, according to Peter Coss, is a construct applied loosely to rather different societies. Any particular model may not fit a specific society, yet a single definition nevertheless remains desirable.[19][20] Titles, while often considered central to the upper class, are not strictly so. Both Captain Mark Phillips and Vice Admiral Sir Timothy Laurence, the respective first and second husbands of HRH Princess Anne, lacked any rank of peerage at the time of their marriage to Princess Anne. However, the backgrounds of both men were considered to be essentially patrician, and they were thus deemed suitable husbands for a princess. 
Landed gentry is a traditional British social class consisting of gentlemen in the original sense; that is, those who owned land in the form of country estates to such an extent that they were not required to actively work, except in an administrative capacity on their own lands. The estates were often (but not always) made up of tenanted farms, in which case the gentleman could live entirely off rent income. 
Esquire (abbreviated Esq.) is a term of British origin, referring only to males, and used to denote a high but indeterminate social status. The most common occurrence of term Esquire today is the conferral as the suffix Esq. in order to pay an informal compliment to a male recipient by way of implying gentle birth. In the post-mediaeval world, the title of esquire came to belong to all men of the higher landed gentry; an esquire ranked socially above a gentleman but below a knight. In the modern world, where all men are assumed to be gentlemen, the term has often been extended (albeit only in very formal writing) to all men without any higher title. It is used post-nominally, usually in abbreviated form (for example, "Thomas Smith, Esq."). 
A knight can be either a mediaeval tenant giving military service as a mounted man-at-arms to a feudal landholder, or a mediaeval gentleman-soldier, usually high-born, raised by a sovereign to privileged military status after training as a page and squire (for a contemporary reference, see British honours system). In formal protocol, Sir is the correct styling for a knight or a baronet, used with (one of) the knight's given name(s) or full name, but not with the surname alone. The equivalent for a woman who holds the title in her own right is Dame; for such women, the title Dame is used as Sir for a man, never before the surname on its own. This usage was devised in 1917, derived from the practice, up to the 17th century (and still also in legal proceedings), for the wife of a knight. The wife of a knight or baronet is now styled "Lady [Surname]".
Membership in the gentry was originally pre-requisite to the honorific "Gentleman", a term that like the honorific "Sir" originally confined to knights, has been inflated to have almost general application. Alexander Hamilton, the claimed grandson of a Scottish laird after whom he was named, would have had a birthright to membership in this class had his birth not been illegitimate (and his paternity not entirely certain, another biological father has been suggested). 

The term "Landlord" derives from this historical class elevation of the gentry, and often when someone owned much of the land somewhere, it was expedient to give that person not just the legal authority of a property owner, but also the sovereign authority of a Justice of the Peace, to handle minor civil disputes and criminal matters.

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