Attaining equal justice

In his recent article discussing qualifications to serve as a judicial officer in California, Justice Arthur Gilbert made reference to the California Supreme Court's decision in Gordon v. Justice Court, 12 Cal. 3d 323 (1974), a landmark case that abolished the practice of non-lawyers serving as judges in California.

A legal system based on non-lawyer justices of the peace presiding over the lowest tier of criminal and civil cases goes back centuries in Anglo-American law. California's First Constitution (1850-1879) continued this tradition by establishing justice courts in our state judicial system.

Non-lawyer and Spanish-speaking Agustin Olvera was the first county judge in Los Angeles when he was elected in 1850 just after California attained statehood. Having performed judicial functions when the pueblo of Los Angeles was part of Mexico, Olvera had some experience judging cases and operated like justices of the peace had for centuries. Under the bilingual California First Constitution, cases were heard in Spanish and English. Interpretation was provided for Olvera who held court at his adobe home, located on the street in downtown Los Angeles named for him in 1877.

Up on the Barbary Coast of San Francisco, a vigilante committee was formed soon after statehood when the local courts could not control the rampant crime. Mark Twain, who worked as a cub reporter prowling the lowly criminal courts for the San Francisco Call from 1863 to 1865, related his low opinion of the quality of justice that he found in such courts. He described one as a "horrible hole" filled with a "sordid mass of rotting, steaming corruption" where the judge could hardly preside over the proceedings.

Twain's parting shot at our state's justice system upon returning to civilized Eastern society to become a famous novelist was none too complimentary: "California had a population that inflicted justice after a fashion that was simplicity and primitiveness itself."

By the 1920s, it was perceived that better organized and more proficient courts were necessary to deal with the complexities of California's expanded criminal and civil dockets. It was particularly recognized that fair hearings in complicated legal matters demanded that judicial officers be attorneys with legal training and experience.

A 1924 amendment to California's Second Constitution (1879 to present) authorized cities and counties to establish municipal courts. Justice and police courts with lay judges were abolished in jurisdictions that took advantage of the newly constituted municipal courts presided over by judicial officers who had been members of the State Bar.

In 1925, Los Angeles established 24 municipal court districts and did away with its justice courts. Among the initial group of "muni court" judges appointed in 1926 was Georgia Bullock, who was the first female graduate of the USC law school in 1914 and was to become the first female Los Angeles County Superior Court judge in 1931 (serving to 1956).

San Francisco followed this example by setting up its municipal court in 1930, an act that would have made Mark Twain proud. But other counties, especially in rural areas, retained their justice courts with non-lawyer justices of the peace presiding over mixed dockets of criminal and civil cases.

In the 1960s, the U.S. Supreme Court under Chief Justice Earl Warren issued major decisions regarding the due process rights of criminal defendants. Among these groundbreaking cases were Gideon v. Wainwright (1963), ensuring the right of an attorney for a criminally accused person, and Miranda v. Arizona (1966), mandating that criminal defendants be advised of their right to an attorney.

At the same time, Congress in 1964 authorized establishment of a legal services program to provide legal representation to indigent persons. Among these programs was California Rural Legal Assistance, which set up nine offices in California's agricultural areas in 1966 to represent farm workers and the rural poor. CRLA Executive Director and future California Supreme Court Justice Cruz Reynoso filled these offices with recently minted lawyers who were keenly aware of the Warren court rights revolution.

CRLA attorneys soon concluded that a lack of legal knowledge and judicial disposition by some lay judges was a significant impediment to their clients obtaining due process and fair trials in rural justice courts. They went to work to do something about this problem by taking legal action to outlaw the inequities of non-attorney justice courts.

Burt Fretz, lead CRLA attorney in the Gordon case, emphasized the difficulties confronting his clients in describing the example of the practices of the "milkman" justice of the peace in Guadalupe, a mostly Mexican-American town on the coast near Santa Maria, California. It was said that this lay judge "made it up as he went along," often handing down criminal sentences and civil judgments based more on whim and less on law. The sarcastic word around town was that the judge's problem was that he had been kicked him in the head too many times while milking his cows and, as a result, had no idea how to rule within the law.

Former CRLA attorney Trudy Chern remarked on the blatant gender discrimination by the legally blind non-lawyer justice court judge in San Obispo. Having a soft spot for the few female attorneys who appeared before the judge, he invariably ruled in their favor. While this aided her clients, she found this lack of fairness to be disturbing.

Attorney Chern delighted in relating how the judge sat at a plain desk with a rotary telephone in front of himself while hearing cases. He had a tendency to fall asleep during court proceedings. When this happened, his marshal would go outside and ring him up. The judge would startle awake, grab the receiver and order counsel to "continue where you were." She said that the judge had a pretty good "sense of justice" for a non-lawyer, but he applied it "by the seat of his pants."

It was such situations involving infringement of their clients' rights that caused CRLA attorneys to file the Gordon case to retire California's non-attorney justice court judges forever.

The Supreme Court's unanimous opinion in Gordon traced the historical origins of the peace judicial system from 14th century in England to the present. Non-attorney courts were a necessity in times when rural judges and attorney stand-ins were less available and trials and other standards much less complex. With greater protections afforded to criminal defendants in modern times, it was critical to have judges with attorney training who could identify and safeguard defendants' procedural and substantive rights. This was especially important in taking guilty pleas, conducting trials and rendering fair sentences. 12 Cal. 2d at 327-32.

The court observed that the justice court system had "operated with reasonable efficiency" in California. Nonetheless, it found that "so long as a reasonable likelihood exists that a non-attorney judge will be unable to afford a defendant a fair trial, due process requires that ... a defendant charged with an offense carrying a possible jail sentence must be provided with an attorney judge to preside over the proceedings." 12 Cal. 2d at 333-34.

And thus ended the system of non-attorney lay judges presiding in California courts.