Judges Should be Lawyers – The Justice of the Peace Debate

If Frank Capra made a movie about judges he would have chosen the Justice of the Peace court system as his dramatic, if not comedic, setting.  A Justice of the Peace, an official who typically has no formal legal training, is an anachronism in the American legal system.  Often called Justice Courts, in many states the position has been replaced by a magistrate, who may or may not have legal training. The office harkens back to a time when there were few trained lawyers to go around, and the local government needed to appoint someone to this position to hear minor cases.  They often hear traffic cases, misdemeanors, and various small claims matters, with a limit in the amount at suit, usually no more than $10,000.  They also perform marriages. If you Google “justice of the peace,” the first three paid listings that appear are offers to perform civil marriages, although the links are not to actual justices of the peace.

Many of these charming local courts do not have court stenographers or even recording devices, and many judges do not even take notes.  Without a record, appeals are impossible. There is often no way of knowing what has transpired. The courtroom may be a converted garage, a library reading room, or the judge’s kitchen. Even today some insist that having a non-lawyer judge is good for the system because it brings a “fresh perspective.”  “Why should we exclude from the bench,”  the argument goes, “people of fine character, good intelligence, public spiritedness, and keen judgment just because they didn’t graduate from law school and pass a bar exam?”  That, indeed is the basic argument for justice courts, and the stupidity of it cannot be overstated. The same argument could be made for appointing a medical director of a municipal hospital without a medical degree.   Any person who possesses those fine characteristics and wants to be a judge at any level should go to law school and pass the bar exam.  There is no reason why a person who occupies such a key position in our system of law should not be formally trained in the law.  We would not want a poet as a city engineer or a cab driver as Municipal Plumbing Inspector. A person whose job is to dispense law should be trained in, well, the law.

There are over 6,000 Justices of the Peace and Magistrate Judges in the country.   States with Justices of the Peace include Arizona, Delaware, Louisiana, Mississippi, Montana, Nevada, New York, Oregon, Texas, and Utah.  States with Magistrate judges are Alaska, Delaware (note – both) Georgia, Idaho, Iowa, Kansas, North Carolina, Oregon, Rhode Island, South Carolina, Vermont, West Virginia, and Wyoming.

Some states are gradually abandoning these positions or are replacing them with licensed lawyers.  California, for example, began replacing justices of the peace with licensed attorneys in 1974, after a unanimous California Supreme Court held that it was a violation of the federal right to due process under the Fourteenth Amendment to allow a non-lawyer justice to preside over a case that could result in jail time.    In New York, an organization known as New York State Magistrates Association, vehemently opposes bills in both the senate and the assembly that would give a criminal defendant a right to have his case heard before a judge who is an admitted attorney, an “opt-out rule.”  The memorandum of opposition, which is posted on the association’s website (http://nysmagassoc.homestead.com) notes that 67% of New York’s 1,500 or so town and village justices are not attorneys, as if this is something to brag about. The memorandum cites  a 1983 case that held that a criminal has no such right.  But whether or not it is a legal right for a criminal to have an attorney as a judge, the non-attorney justice of the peace system makes no sense.  Ours is no longer an agrarian nation where population centers are sparse and widely dispersed, and transportation onerous.  A common argument is that the system would be overloaded if cases had to be heard by judges who are licensed lawyers. But this is an echo of times past when there were few lawyers, which is hardly the situation now.

Most of these positions are part time jobs, so finding trained and licensed attorneys to fill the spots is not a challenging task, even if the pay is modest.  A call to civic duty is not rare among lawyers.  Why do we find lawyers sitting on not-for-profit boards, school boards, and library boards?  These positions seldom pay, so even if the compensation for a Justice of the Peace or Magistrate job is modest, there is no reason to believe there won’t be plenty of attorney-applicants for open positions. But attempts to change the system have often resulted in firm opposition.

Undereducated and poorly trained judges are not just theoretical problems. The New York Times published a three part series in 2006 about the local justice courts in New York State entitled “Broken Bench.”    The system is replete with incidents of defendants who were jailed without bail or without being advised of the right to an attorney, of judges refusing to grant protective orders, and in one matter, dismissing a case based on a judge’s discussion with a local municipal official without the defendant municipality even showing up.  A woman from upstate New York, a mother of four, sought an order of protection against her husband, who allegedly choked her, kicked her in the stomach, and threatened to kill her. The justice, a former state trooper with only a high school diploma, not only refused to issue the order, but later told his court clerk, “Every woman needs a good pounding every now and then.”   A 76-year-old man who contested a speeding ticket was jailed without warning for 3 days in 2003 because he called the sheriff’s deputy a liar. One judge, a retired factory worker, turned his courtroom into a collection agency for local business owners. A Louisiana justice of the peace, Justice Keith Bardwell, made worldwide headlines recently when he refused to perform a marriage for a mixed race couple.  According to Judge Bardwell, he refuses to marry interracial couples because of his concern for the offspring of the marriage, who, he has determined, won’t be accepted by either race.  Perhaps he is worried that one of the mixed race kids may grow up to be President of the United States.  He notes that he has “…piles and piles of black friends” and that when they come to his house they even “use my bathroom.”  What a guy!  He apparently never heard of the case of Loving v. Virginia, a 1967 US Supreme Court case that found laws against inter-racial marriages unconstitutional.   I called the Louisiana State Bar Association and was not surprised to discover that Judge Bardwell is not an attorney.  He resigned his position as justice of the peace in Tangipahoa Parish in November 2009, amidst widespread calls for his ouster, including one from Louisiana Governor Bobby Jindall. But this was a headline making case.  Because there are usually no recordings of the proceedings, violations of the law occur every day in these ersatz courtrooms.

Many attorneys try to avoid justice courts because they are frustrated that the “justices” cannot understand their legal arguments.  One New York justice of the peace, a phone-company repairman, would curse at defendants and jail them without bail or even a trial, state disciplinary officials found. In a case involving a loose dog, he ordered the dog killed and then he threatened its owner with jail. One of the biggest problems is not that the local judges aren’t trained in the law, but that they often have very little formal education of any kind.  The New York Times noted that in 2006 of the 75% of the judges who are not attorneys, over 400 of them, about one third, do not have any education beyond high school and of those 40 have not even graduated from high school.

If the lack of educational requirements is shocking, the training of non-lawyer justices is worse.  Until recently New York only required 1 week of training in the law with a 50-question true-false test at the end.  The passing grade was 70. If you fail, you get to retake the exam as needed. In 2006, the New York State Office of Court Administration launched an “Action Plan” to improve the Justice Court system.  In the 2-year update report in 2008, we see that the educational requirements have tightened up.  The report states that the changes in the training requirements are “…particularly dramatic.”   The drama we witness is this: classroom time has been extended from 1week to 2, and 4 weeks of in-home study have been added, and there is a provision for continuing educational seminars.  After this “training” these folks are set loose to sit in judgment over their fellow citizens. And the problem shows little sign of improvement in New York.  In January 2010, the New York Times reported that a bill to make minor changes to the system had stalled in the state legislature.   The proposal would have given a criminal defendant the right to have his case heard by a judge who is a lawyer, similar to the “opt out” system in California.  The system is so mired in local politics that even a special 31 member commission could not muster the support necessary. A working political compromise should be obvious: simply grandfather the existing non-lawyer judge positions, but change the law to require any future justice of the peace to have graduated from an accredited law school, pass the bar exam, and hold a license to practice law.  Add to the bill more stringent continuing education requirements for sitting judges. This seems like a simple way to cure an ongoing national embarrassment, but don’t hold your breath.  A justice of the peace should be a relic of old time movies, not a part of the American system of law. This article has been excerpted from my book Justice in America – How it Works – How it Fails. https://www.createspace.com/3637622

About Russ

Russ Moran is an author, lawyer, and blogger. He writes on a wide variety of topics, including recreational themes such as boating, how-to articles, law and business. He is the author of Justice in America: How it Works - How it Fails, published in 2011. Kirkus Reviews calls the book: "A lively,brash,illuminating insider look at the law,by a compelling expert." Russ has recently finished The APT Principle: The Business Plan that you Carry in Your Head, It was published in June 2012. His blog is The Moran Report at www.morancom.com. Russ lives on Long Island with his wife Lynda. They have a five year old shih tzu that they are still trying to house train.
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