Ed. Note: Following a so-very-Tennessee story about the decisions made by a non-lawyer “judicial commissioner,” the question was posed for debate between Chris Seaton and David Meyer-Lindenberg: Should non-lawyers hold judicial positions? This is Chris’ argument.
People charged with crimes or sued civilly have to go before a judge who will hear their case. Because these are legal matters, involving laws, the average person might expect the person wearing the black robe had trainng and experience as a lawyer. In fourteen states, that idea doesn’t hold up, as non-lawyer judges preside over many cases, including criminal trials.
Take a deep breath before you start impersonating a blue-haired gender-studies major and screech “Sixth Amendment! Due Process! Fundamental Fairness!” Having non-lawyer judges is a good thing, and the judiciary doesn’t need only lawyers in its ranks.
First, the idea of a non-lawyer judge is an American ideal almost as old as the nation. In 1831, Alexis de Tocqueville* praised the American “justice of the peace.”
A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws,” …“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.
That sentiment has carried forward to the 21st century, where fourteen states allow non-lawyer judges to hand down jail sentences. In six of those states, defendants with punitive judgments have the right to seek a new trial before a judge with litigation experience. The rest only allow the practice when a defendant is charged with a misdemeanor.
No less an authority than the United States Supreme Court declared this a non-issue this year when they denied certiorari in Davis v. Montana, a case that would have definitively answered the question whether defendants had the right to trials judged by people with legal experience.
Regardless of your opinion on the High Court’s lack of desire to hear cases, this is a pretty big issue. The fact a majority of justices decided this case wasn’t worth their time speaks volumes about what people with actual law degrees think regarding the issue of non-lawyer judges.
Second, it’s arguable that some judicial positions don’t need even a law degree. American traffic courts could easily be presided over by someone with a twelve-hour certification course. One trip inside the money mills of traffic court will show anyone why no lawyer needs to sit on the bench listening to your Aunt Tammy explain why the light was yellow when she went through the intersection.
Most of the people who show for traffic court are there to argue over trivial matters and to complain how that damn cop had it out for them and a quota to meet. No sane lawyer would dare take a black robe for the grind of listening to hundreds of people bitch and moan daily about traffic tickets. Let a non-lawyer take the job and save taxpayers some money.
Third, non-lawyers are beginning to creep into the civil realm as a form of judge. This quasi-judge is called a mediator, and you don’t need a law degree to be one. Requirements for the privilege of calling yourself a mediator vary in states, but most require completion of a course and paying a fee to the state for certification or listing.
When a mediator is called in to settle a civil dispute, the theory is he or she will work as a neutral, listening to both sides and helping them reach a mutually acceptable solution to their case. The reality is most mediators work as a neutral arbiter. They step foot into the mediation with a handle on how a particular judge will rule on the matter before either side utters a word.
Those mediators then work from the following stance: “If you take your case before Judge (X), this is probably how he’s going to rule if you go to trial. You’ll save time, money, and energy by settling the case here. What’s your story?” The end result is the mediator effectively hears the case for the judge, types up a “Mediated Agreement,” both parties sign, and the mediator drops the original off at the courthouse for the judge to approve and draft an Order.
At the civil level, American trial courts are letting mediators, many without a shred of legal experience, try cases outside of a courthouse. Few have issues with this or are calling foul over a lack of due process. Despite our posturing over “due process,” non-lawyers are deciding cases inside and outside of courtrooms. There’s nothing wrong with that.
My esteemed opponent has in the past countered my arguments with the statement that I refuse to provide a solution to the issue debated. While I see this as a non-issue, I would propose the following system for allowing non-lawyers to serve as judges:
- Criminal cases require someone with a law degree.
- Civil trials can be heard by someone who passes a mediation course and successfully
- Completes one mediation as determined by an experienced mediation professional.
- Traffic court judges need to pass a twelve-hour certification course.
Sometimes solutions really are simple. Return power to the people and let non-lawyers take the bench.