Justice Without Lawyers?

Do you want to be a justice of the peace in Montana with the ability to send defendants to jail for up to six months? If so, you just need to be elected and to complete a four-day “certification” course consisting of approximately 28 hours of study. Don’t worry, a law degree or even a bachelor’s degree are not required. In contrast, to become a cosmetologist in Montana you must complete 2,000 hours of study or the equivalent of 71 times as much training as it takes to become a justice of the peace. For example, the justice who presided over both trials at issue in the recent Supreme Court case Davis v. Montana, Linda Budeski, 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 before becoming Park County’s elected Justice of the Peace.

Last July, Kelly Davis and Shane Sherman petitioned the Supreme Court of the United States for certiorari in the case Davis v. Montana. Both were separately arrested and charged with driving under the influence in Park County, Montana. Both moved unsuccessfully for dismissal at trial. They argued that the proceedings violated their Constitutional rights to be tried by a lawyer-judge. Justice Budeski sentenced Davis to 30 days in jail and Sherman to 10 days. Davis and Sherman both appealed their sentences.

In their appeal Davis and Sherman argued that being tried by a non-lawyer judge was a violation of due process when incarceration is a possible penalty. The fundamental guarantee of the Due Process Clause is “a meaningful opportunity to be heard.” In North v. Russell (1976), the Court recognized that once imprisonment is an available penalty, the process commands scrutiny under the Due Process Clause. This distinction is analogous to that drawn for the right to counsel, which attaches when a defendant may be imprisoned. Misdemeanor trials, where imprisonment is a possible penalty, require a legally trained judge. Similar to felony trials, they can involve evidentiary issues and constitutional questions that are difficult and complex. So the judge conducting the trial must be able to understand what the defendant’s legal counsel is talking about.

But in May 2016, the Montana Supreme Court upheld their convictions and the U.S. Supreme Court denied certiorari on January 17, 2017 leaving the practice of non-lawyer judges in place. This decision is consistent with the 1976 U.S. Supreme Court decision in North v. Russell, that the due process clause isn’t violated when “a criminal defendant is tried by a nonlawyer judge and the defendant has a right to a new trial before a judge who is a lawyer.” However, this case left open the question whether a defendant’s due process rights are violated when their only trial option is before a non-lawyer, as in Montana.

Residents of Montana are not the only citizens at risk of being tried by a non-lawyer judge. Twenty-Two states in America do not require judges presiding over misdemeanor cases to be lawyers. But in 14 of those states, if a defendant receives a jail sentence from a non-lawyer judge, they have a right to a new trial before a lawyer-judge. In the remaining eight states—Montana, Arizona, Colorado, Nevada, New York, Texas, South Carolina, and Wyoming—defendants sentenced to jail for misdemeanors are not guaranteed a new trial before a lawyer judge. Montana abolished that right in 2003 due to budgetary concerns. However, some of these states--Montana, New York, Colorado, Nevada, and Texas--only allow the use of non-lawyer judges in less populated counties.

The tradition of justices of the peace dates back to United States independence from England. There, members of the gentry, who were not usually lawyers, conducted criminal trials. Even though the U.S. lacked a gentry, their justices were similar. A justice was considered “an enlightened citizen” who is “not necessarily versed in the knowledge of the law.” Critics argue that this tradition could be justified historically when lawyers and law schools were scarce, but today it raises issues with due process and the Sixth Amendment right to a fair trial. Non-lawyer judges gradually became less capable and necessary as legal education became more rigorous and standardized, technological changes allowed each courthouse to serve a larger geographic area, and criminal trials became substantially more complex.

Today, rural America still has an egregious lawyer shortage. A 2013 New York Times article featured data indicative of the rural lawyer shortage. Only 2% of small law practices are located in rural areas, but almost one fifth of the population lives in these areas. As of 2013:

• 65% of South Dakota’s lawyers live in four urban areas.
• 70% of Georgia’s lawyers live in the Atlanta area.
• 94% of Arizona’s lawyers are in Maricopa and Pima counties.
• 83% of Texas lawyers are in Houston, Dallas, Austin, and San Antonio.

Unfortunately, the data have not improved since 2013. A 2016 PBS interview quoted very similar statistics for South Dakota, Georgia, and Arizona. In 2016, nearly 70% of all American counties were considered small but only 2% of American lawyers practice in them. In Nebraska, 11 out of 93 counties still have no lawyers.

The lawyers and judges who do live in rural areas must cover large geographic areas. In Montana,  nine rural judges serve seven rural judicial districts, covering 75, 858 miles. As a result, these judges spend around a quarter of their time traveling around the state. Long travel times take a toll on judges and funding for courts and judicial services. Additional travel due to geographic isolation can also delay justice. Traveling long distances can make scheduling court appearances difficult for all participants, including parties, attorneys, judges, law enforcement, and witnesses.

Tim Brouillette, a rural Nebraskan lawyer drives 40-100 miles at least twice a week to see clients. He also travels to McPherson county once a month to serve as the county prosecutor. Brouillette attributed the shortage of rural Nebraskan lawyers to brain drain in rural America. As discussed in a recent blog post, young people often leave rural areas to achieve higher education and do not return. As a result, rural areas often have a shortage of doctors, dentists, and lawyers.

However, several states have implemented programs to attract rural lawyers. Nebraska is offering 15 rural high school students a year a full tuition scholarship and future admission to the University of Nebraska Law School. South Dakota created a Rural Attorney Recruitment Program which promises young attorneys $12,000 per year for five years if they move to a qualifying county with less than 10,000 people. These programs help young lawyers pay down their student debt, which may be a big inhibitor to moving to rural areas since they don’t necessarily get paid as well as urban lawyers. Texas has chosen to forgo incentivizing lawyers to move to rural areas and is instead connecting rural self-represented litigants with volunteer attorneys through videoconferencing.

I hope that these programs continue to spread and flourish across rural America. However, until the shortage of rural lawyers is solved, it is hard to see an end to the use of non-lawyer judges. If rural areas cannot attract enough lawyers now, how can they have enough lawyers to replace all of the non-lawyer judges? Solving this shortage may mean utilizing technology, like in Texas, to give rural areas access to lawyers without lawyers moving there. Or it may mean more incentive programs like in Nebraska and South Dakota, which strive to attract young lawyers worried about student debt.