Do you want to be a massage therapist in Helena, Montana? You’ll need 500 hours of study to receive your license first.
What about a barber at a shop in Billings? Get ready to spend 1,500 hours practicing your craft.
How about one of state’s justices of the peace, with the power to send defendants to jail for up to six months? You’re in luck—only a four-day certification course is necessary.
No law degree is required, either—only the approval of the voters in your county. While Montana’s rules are not the norm in America, they’re also not unheard of. Twenty-eight states require all judges presiding over misdemeanor cases to be lawyers, including large states like California and Florida. In 14 of the remaining 22 states, a defendant who receives a jail sentence from a non-lawyer judge has the right to seek a new trial before a lawyer-judge.
But Montana and seven other states—Arizona, Colorado, Nevada, New York, Texas, South Carolina, and Wyoming—allow non-lawyer judges to hand down jail sentences for misdemeanors without the right to a new trial before a lawyer-judge. Some states, like Montana, only allow the practice in rural or sparsely populated counties, while others allow it statewide.
The situation may have been acceptable in the 19th century, when lawyers and law schools were scarce, critics say. But in the modern era, they say it raises serious questions about due process and the Sixth Amendment right to a fair trial. “What’s the point of having a legally-trained lawyer if the judge can’t understand what they’re saying?” said Stuart Banner, a University of California Los Angeles law professor.
What makes Montana’s situation even more troubling is that its usage of non-lawyer judges is not a vestige of an earlier era, but a recent attempt to save money. From at least 1895 until the 21st century, Montana guaranteed defendants tried before non-lawyer judges to a new trial before a lawyer-judge. Then, in 2003, state lawmakers tweaked the state’s rules to allow counties to exclude themselves from that right by designating their justice courts as courts of record. A state senator told his colleagues while introducing the bill would “provide cost savings to the people of Montana at every level.”
“It wasn’t like they were nostalgic for the good ol’ days or something,” Banner said.
Banner and his students drafted a petition for certiorari last July urging the U.S. Supreme Court to take up the issue in Davis v. Montana. The case revolved around two defendants, Kelly Davis and Shane Sherman, who were separately arrested and charged with driving under the influence. Each of them unsuccessfully moved for dismissal at trial, arguing the proceedings violated the Sixth and Fourteenth Amendments by denying them access to a trial by a lawyer-judge. Davis received a 30-day jail sentence; Sherman was sentenced to serve ten days behind bars. The Montana Supreme Court upheld the convictions last May and the U.S. Supreme Court declined to hear the case in January, leaving the underlying constitutional question unresolved.
Justices of the peace have been a cornerstone of American governance since the colonial era, when they formed the political backbone of towns and villages where state and federal officials rarely traveled. Local aristocrats often fulfilled the English version of the institution that arose from 14th century medieval reforms. But since early Americans lacked an aristocracy, the offices they inherited were instead held by respectable local leaders who were often non-lawyers. This adaptation drew the praise of Alexis de Tocqueville, a French political scientist who studied the early 19th-century United States.
“A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws,” he observed in 1831. “His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.” In that role, justices of the peace often carried out a wide variety of duties, ranging from officiating weddings and assessing fines to issuing warrants and trying criminal cases.
But by the mid-20th century, the folksy image of the justice of the peace lost its luster. Criminal procedure grew more complex as the Supreme Court applied the Bill of Rights’ provisions to the states. Advances in both communications and transportation allowed states to centralize their sprawling judicial systems. With the growth and spread of law schools, the traditional apprenticeship-style system of reading law with a practicing attorney gave way to a professionalized corps of lawyers. Accordingly, by the 1960s, most states began to require lawyer-judges for all criminal cases, even misdemeanors.
“There's a lot more lawyers than there used to be,” said Banner. “Trials are a lot more complicated than they used to be. And with technological changes, you don't need to have a court in every small town and quite so many judges scattered all over.”
In 1972, the U.S. Supreme Court heard North v. Russell, a challenge to Kentucky’s then-two-tiered judicial system in which only cities with more than 100,000 residents had to use lawyer-judges in their municipal courts. Lonnie North, the defendant, challenged the jail sentence he received from Judge C.B. Russell, a coal miner with no legal education. Chief Justice Warren Burger led a 6-2 majority to uphold the arrangement in a dry, rote opinion, citing North’s procedural ability to seek a new trial before a lawyer-judge.
Justices Potter Stewart and Thurgood Marshall found the system intolerable and dissented. In this case alone, Russell had denied North a trial by jury in violation of state law and sentenced him to imprisonment even though the statutes didn’t authorize it for his offense. Nor did Stewart and Marshall agree with Burger’s proposed solution that a defendant simply admit guilt and ask for a new trial. “In short, I cannot accept the suggestion that, as a prerequisite to a constitutionally fair trial, a defendant must stand up in open court and inform a judge that he is guilty when in fact he believes that he is not,” Stewart wrote.
By upholding the conviction, the Court rejected not only the premise of due process, he argued, but also betrayed the ancient protections of Magna Carta, the medieval English charter of liberties. “At Runnymede in 1215, King John pledged to his barons that he would ‘not make any justices, constables, sheriffs, or bailiffs, excepting of such as know the laws of the land,’” Stewart concluded. “Today, more than 750 years later, the Court leaves that promise unkept.”
Banner wouldn’t go quite as far as King John. Most of the functions performed by justices of the peace don’t require a formal legal education, after all. “I think everyone would agree there's no problem for non-lawyer judges to perform weddings,” Banner said. “At the opposite extreme, I think everyone or almost everyone would agree that if you have non-lawyer judges presiding over capital trials, that doesn't seem right. So somewhere in between there's got to be a line.”
That line, Banner suggests, should be incarceration. The Supreme Court has already adopted that threshold for another crucial element of the criminal-justice process: the right to legal counsel. “If there's no prospect of incarceration, you don't have a constitutional right to a legally-trained lawyer,” he argued. “But once incarceration enters the picture, then you do. And so our argument was, well, it ought to be the same line for judges.”
Montana’s example also offers a troubling potential precedent. Multiple states have pared back their ability to uphold constitutional protections for budgetary reasons in recent years. Louisiana’s indigent-defense system is on the verge of collapse in most of its parishes from underfunding. Missouri towns often use predatory methods to collect fines, a practice that in Ferguson, drew condemnation from the U.S. Justice Department. Is it possible states could follow Montana’s lead and broaden the use of non-lawyer judges to cut costs, I asked?
Banner paused for a moment. “I hope not,” he replied.