Under Kentucky's two-tier court system, police courts (the first
tier) have jurisdiction of misdemeanor cases, but an accused has an
appeal of right from a police judge's decision to the circuit court
(the second tier), where there is a trial
de novo. The
State Constitution requires cities in Kentucky to be classified
according to population size. By statute, judges of police courts
in cities of less than a certain population need not be lawyers,
but, in larger cities, they must be, and all circuit court judges
are lawyers. In this challenge to the constitutionality of the
statutory scheme,
held:
1. An accused, who is charged with a misdemeanor for which he is
subject to possible imprisonment, is not denied due process when
tried before a nonlawyer police court judge in one of the smaller
cities, when a later trial
de novo is available in the
circuit court.
Ward v. Village of Monroeville,
409 U. S. 57;
Tumey v. Ohio, 273 U. S. 510,
distinguished. Pp.
427 U. S.
333-339.
2. Nor does the State deny such an accused equal protection of
the laws by providing law-trained judges for some police courts and
lay judges for others, depending upon the State Constitution's
classification of cities according to population, since, as long as
all people within each classified area are treated equally, the
different classifications within the court system are justified.
Missouri v. Lewis, 101 U. S. 22. Pp.
427 U. S.
338-339.
Affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J.,
concurred in the result. STEWART, J., filed a dissenting opinion,
in which MARSHALL, J., joined,
post, p.
427 U. S. 339.
STEVENS, J., took no part in the consideration or decision of the
case.
Page 427 U. S. 329
MR CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented in this case is whether an accused,
subject to possible imprisonment, is denied due process when tried
before a nonlawyer police court judge with a later trial
de
novo available under a State's two-tier court system; and
whether a State denies equal protection by providing law-trained
judges for some police courts and lay Judges for others, depending
upon the State Constitution's classification of cities according to
population.
(1)
Appellant Lonnie North was arrested in Lynch, Ky., on July 10,
1974, and charged with driving while intoxicated in violation of
Ky.Rev.Stat.Ann. § 189.520(2) (1971). If a first offense, a penalty
of a fine of from $100 to $500 is provided; if a subsequent
offense, the same fine, and imprisonment for not more than six
months. [
Footnote 1]
Ky.Rev.Stat.Ann. § 189.990(10)(a) (1971).
Page 427 U. S. 330
Appellant's trial was scheduled for July 18, 1974, at 7 p.m.,
before the Lynch City Police Court. Appellee C. B. Russell, who is
not a lawyer, was the presiding judge. Appellant's request for a
jury was denied although, under Kentucky law, he was entitled to a
jury trial. Ky Const. § 11; Ky.Rev.Stat. Ann §§ 25.014, 26.400
(1971). Appellant pleaded not guilty. Appellant was found guilty
and sentenced to 30 days in jail, a fine of § 150, and revocation
of his driver's license.
Section 156 of the Kentucky Constitution requires cities to be
classified according to population size. There are six classes of
cities: fifth-class cities have a population of between 1,000 and
3,000; sixth-class cities have a population of less than 1,000.
Lynch is a fifth-class city. Ky.Rev.Stat.Ann. § 81.010(5) (1971). A
police judge in fifth- and sixth-class cities must, by statute, be
a voter and resident of the city for at least one year and be
bonded, Ky.Rev.Stat.Ann. § 26.200 (1971); the police judge in such
cities need not be a lawyer. Police judges in first-class cities,
which have populations of over 100,000, must have the same
qualifications as a circuit judge, who must be at least 35 years of
age, a citizen of Kentucky, a two-year resident of the district,
and a practicing attorney for eight years. [
Footnote 2] Ky.Const. § 130; Ky.Rev.Stat.Ann. § 26.140
(1971). Police court judges have terms of four years.
Page 427 U. S. 331
In fourth-, fifth-, or sixth-class cities police judges may be
either appointed or elected. [
Footnote 3] Ky.Const. § 160.
Police courts have jurisdiction, concurrent with circuit courts,
of penal and misdemeanor cases punishable by a fine of not more
than § 500 and/or imprisonment of not more than 12 months.
Ky.Rev.Stat.Ann. § 26.010 (1971). Kentucky has a two-tier
misdemeanor court system. An appeal of right is provided from the
decision of a police judge to the circuit court where all judges
are lawyers, and in that court, a jury trial
de novo may
be had. Ky.Rev.Stat.Ann. § 23.032 (1971); Ky.Rule Crim.Proc.
12.06.
Appellant did not appeal to the Kentucky circuit court for a
trial
de novo to which he was entitled. After being
sentenced by appellee judge, appellant challenged the statutory
scheme described above by a writ of habeas corpus in the Harlan
County Circuit Court, where he was
Page 427 U. S. 332
represented by an attorney. Appellant contended that his federal
due process and equal protection rights had been abridged because
he had been tried and convicted in a court presided over by a judge
without legal training, and thus without legal competence. The
State Circuit Court issued the writ, granted bail, and held an
evidentiary hearing.
The Circuit Court noted that appellant was not challenging the
adequacy of the proceedings before appellee Russell, and hence
rested on the appellant's pleadings, which the court found were
purposefully limited to the issue whether appellant could be tried
before a judge who was not legally trained when persons similarly
situated but residing in larger cities would be tried by a judge
trained in the law. The Circuit Court denied relief on the basis of
the Kentucky Court of Appeals holding in
Ditty v.
Hampton, 490
S.W.2d 772 (1972),
appeal dismissed, 414 U.S. 885
(1973). The Kentucky Court of Appeals in turn affirmed the denial
of relief on the basis of
Ditty v. Hampton, supra, noting
that appellant could apply for bail in the event of an appeal from
the Lynch Police Court judgment.
516
S.W.2d 103 (1974).
When this case first came here on appeal we vacated the judgment
and remanded it "for further consideration in light of the position
presently asserted by the Commonwealth." 419 U.S. 1085 (1974). The
Attorney General of Kentucky in his motion to dismiss or affirm had
requested that this Court remand the case to the Kentucky Court of
Appeals for consideration of violations of state law based on the
suggestion that appellee judge had
"mistakenly imposed a sentence of imprisonment upon appellant
for a first offense of driving while intoxicated, whereas
imprisonment is not an authorized punishment for first offenders. .
. ."
The
Page 427 U. S. 333
Kentucky Attorney General conceded that the writ of habeas
corpus should have been granted and requested an opportunity to
correct the error.
On remand, however, the Kentucky Court of Appeals declined to
decide the case on the state grounds presented by the Attorney
General, noting that the federal constitutional issue "was and is
the only issue before us." That court noted that appellant sought
only to "test the constitutional status of lay judges in criminal
cases." No. 74-723 (Mar. 21, 1975).
On the second appeal to this Court we noted probable
jurisdiction. 422 U.S. 1040 (1975).
(2)
Appellant's first claim is that, when confinement is a possible
penalty, a law-trained judge is required by the Due Process Clause
of the Fourteenth Amendment whether or not a trial
de novo
before a lawyer-judge is available. [
Footnote 4]
Page 427 U. S. 334
It must be recognized that there is a wide gap between the
functions of a judge of a court of general jurisdiction, dealing
with complex litigation, and the functions of a local police court
judge trying a typical "drunk" driver case or other traffic
violations. However, once it appears that confinement is an
available penalty, the process commands scrutiny.
See
Argersinger v. Hamlin, 407 U. S. 25
(1972).
Appellant argues that the right to counsel articulated in
Argersinger v. Hamlin, supra, and
Gideon v.
Wainwright, 372 U. S. 335
(1963), is meaningless without a lawyer-judge to understand the
arguments of counsel. Appellant also argues that the increased
complexity of substantive and procedural criminal law requires that
all judges now be lawyers in order to be able to rule correctly on
the intricate issues lurking even in some simple misdemeanor cases.
In the context of the Kentucky procedures, however, it is
unnecessary to reach the question whether a defendant could be
convicted and imprisoned after a proceeding in which the only trial
afforded is conducted by a lay judge. In all instances, a defendant
in Kentucky facing a criminal sentence is afforded an opportunity
to be tried
de novo in a court presided over by a
lawyer-judge, since an appeal automatically vacates the conviction
in police court. Ky.Rev.Stat.Ann. § 23.032 (1971); Ky.Rule
Crim.Proc.
Page 427 U. S. 335
12.06. The trial
de novo is available after either a
trial or a plea of guilty in the police court; a defendant is
entitled to bail while awaiting the trial
de novo.
516
S.W.2d 103 (1974).
It is obvious that many defendants charged with a traffic
violation or other misdemeanor may be uncounseled when they appear
before the police court. They may be unaware of their right to a
de novo trial after a judgment is entered, since the
decision is likely to be prompt. We assume that police court judges
recognize their obligation under
Argersinger v. Hamlin,
supra, to inform defendants of their right to a lawyer if a
sentence of confinement is to be imposed. The appellee judge
testified that informing defendants of a right to counsel was "the
standard procedure." App. 32. We also assume that police court
judges in Kentucky recognize their obligation to inform all
convicted defendants, including those who waived counsel or for
whom imprisonment was not imposed, of their unconditional right to
a trial
de novo and of the necessity that an "appeal" be
filed within 30 days in order to implement that right. Ky.Rule
Crim.Proc. 12.04.
In
Colten v. Kentucky, 407 U.
S. 104 (1972), we considered Kentucky's two-tier system
there challenged on other grounds. We noted:
"The right to a new trial is absolute. A defendant need not
allege error in the inferior court proceeding. If he seeks a new
trial, the Kentucky statutory scheme contemplates that the slate be
wiped clean. Ky.Rule Crim.Proc. 12.06. Prosecution and defense
begin anew. . . . The case is to be regarded exactly as if it had
been brought there in the first instance."
Id. at
407 U. S. 113.
We went on to note that the justifications urged by
Page 427 U. S. 336
States for continuing such tribunals [
Footnote 5] are the "increasing burdens on state
judiciaries" and the "interest of both the defendant and the State,
to provide speedier and less costly adjudications" than those
provided in courts "where the full range of constitutional
guarantees is available. . . ."
Id. at
407 U. S. 114.
Moreover, state policy takes into account that it is a convenience
to those charged to be tried in or near their own community, rather
than travel to a distant court where a law-trained judge is
provided, and to have the option, as here, of a trial after regular
business hours. We took note of these practical considerations in
Colten:
"We are not persuaded, however, that the Kentucky arrangement
for dealing with the less serious offenses disadvantages defendants
any more or any less than trials conducted in a court of general
jurisdiction in the first instance, as long as the latter are
always available. Proceedings in the inferior courts are simple and
speedy, and, if the results in Colten's case are any evidence, the
penalty is not characteristically severe. Such proceedings offer a
defendant the opportunity to learn about the prosecution's case
and, if he chooses, he need not reveal his own. He may also plead
guilty without a trial and promptly secure a
de novo trial
in a court of general criminal jurisdiction."
Id. at
407 U. S.
118-119.
Page 427 U. S. 337
Under
Ward v. Village of Monroeville, 409 U. S.
57,
409 U. S. 61-62
(1972), appellant argues that he is entitled to a lawyer-judge in
the first instance. There the judge was also mayor and the village
received a substantial portion of its income from fines imposed by
him as judge. Similarly in
Tumey v. Ohio, 273 U.
S. 510 (1927), the challenge was directed not at the
training or education of the judge but at his possible bias due to
interest in the outcome of the case, because, as in
Monroeville, he was both mayor and judge and received a
portion of his compensation directly from the fines. Financial
interest in the fines was thought to risk a possible bias in
finding guilt and fixing the amount of fines, and the Court found
that potential for bias impermissible.
Under the Kentucky system, as we noted in
Colten, a
defendant can have an initial trial before a lawyer-judge by
pleading guilty in the police court, thus bypassing that court and
seeking the
de novo trial, "erasing . . . any consequence
that would otherwise follow from tendering the [guilty] plea." 407
U.S. at
407 U. S.
119-120.
Our concern in prior cases with judicial functions being
performed by nonjudicial officers has also been directed at the
need for independent, neutral, and detached judgment, not at legal
training.
See Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S.
449-453 (1971).
See also, e.g., Whiteley v.
Warden, 401 U. S. 560,
401 U. S. 564
(1971);
Katz v. United States, 389 U.
S. 347,
389 U. S. 356
(1967);
Wong Sun v. United States, 371 U.
S. 471,
371 U. S.
481-482 (1963). Yet cases such as
Shadwick v. City
of Tampa, 407 U. S. 345
(1972), are relevant; lay magistrates and other judicial officers
empowered to issue warrants must deal with evaluation of such legal
concepts as probable cause and the sufficiency of warrant
affidavits. Indeed,
Page 427 U. S. 338
in
Shadwick the probable cause evaluation made by the
lay magistrate related to a charge of "impaired driving." [
Footnote 6]
(3)
Appellant's second claim is that Kentucky's constitutional
provisions classifying cities by population and its statutory
provisions permitting lay judges to preside in some cities while
requiring law-trained judges in others denies him the equal
protection guaranteed by the Fourteenth Amendment. However, all
people within a given city and within cities of the same size are
treated equally.
The Kentucky Court of Appeals in
Ditty v. Hampton,
supra, articulated reasons for the differing qualifications of
police court judges in cities of different size:
"1. The greater volume of court business in the larger cities
requires that judges be attorneys to enable the courts to operate
efficiently and expeditiously (not necessarily with more fairness
and impartiality)."
"2. Lawyers with whom to staff the courts are more available in
the larger cities."
"3. The larger cities have greater financial resources with
which to provide better qualified personnel and better facilities
for the courts."
490 S.W.2d at 776. That court then noted: "That population and
area factors may justify classifications within a court system has
long been recognized."
Id. at 776-777. The Court of
Appeals relied upon
Missouri v.
Lewis, 101
Page 427 U. S. 339
U.S. 22 (1880), which held that, as long as all people within
the classified area are treated equally:
"Each State . . . may establish one system of courts for cities
and another for rural districts, one system for one portion of its
territory and another system for another portion. Convenience, if
not necessity, often requires this to be done, and it would
seriously interfere with the power of a State to regulate its
internal affairs to deny to it this right."
Id. at
101 U. S. 30-31.
See generally Salsburg v. Maryland, 346 U.
S. 545 (1954);
Fay v. New York, 332 U.
S. 261 (1947);
Manes v. Goldin, 400 F. Supp.
23 (EDNY 1975) (three-judge court),
summarily aff'd,
423 U. S. 1068
(1976).
We conclude that the Kentucky two-tier trial court system, with
lay judicial officers in the first tier in smaller cities and an
appeal of right with a
de novo trial before a
traditionally law-trained judge in the second, does not violate
either the due process or equal protection guarantees of the
Constitution of the United States; accordingly the judgment before
us is
Affirmed.
MR. JUSTICE BRENNAN concurs in the result.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
The offense now carries the same monetary fine schedule, but a
second offense now requires imprisonment for not less than three
days and not more than six months; any subsequent offense requires
imprisonment for not less than 30 days and not more than 12 months.
Ky.Rev.Stat.Ann. $189.990(9)(a) (Supp. 1974).
[
Footnote 2]
A second-class city (population 20,000-100,000) police judge
must be at least 25, a resident of the city for four years, and an
attorney at law. Ky.Rev.Stat.Ann. § 26.150 (Supp. 1974). A
third-class city (population 8,000-20,000) and a fourth-class city
(population 3,000-8,000) police judge must be at least 24 and a
city resident. Ky.Rev.Stat.Ann. § 26.190 (1971).
[
Footnote 3]
The General Assembly of the Commonwealth of Kentucky at its 1974
session, by Senate Bill 183, enacted an Act proposing an amendment
to the Kentucky Constitution relating to the judicial branch of
government. On November 4, 1975, the Kentucky voters ratified the
judicial amendment to the Kentucky Constitution, effective January
1, 1976. It provides, in part, that, by January 1, 1978, all the
county, quarterly, justice of the peace, and police courts will be
combined into one district court in each of the 120 counties. These
counties are to be allocated among 55 districts and each district
is to elect at least one district judge who must be an attorney
licensed in Kentucky. A district judge in multi-county districts
must appoint a trial commissioner for each county in which no
district judge resides. The commissioner must be an attorney if one
is qualified and available. The commissioner will have the power to
perform such duties of the district court as may be prescribed by
the Kentucky Supreme Court.
The case is not mooted by this judicial amendment, since the
police courts will continue to function as challenged until January
1, 1978, and since the new amendment still permits nonlawyer judges
to sit. These judges may have power to impose prison sentences if
the Kentucky Supreme Court so provides.
[
Footnote 4]
Article III of the United States Constitution, of course, unlike
provisions of some state constitutions,
see, e.g.,
N.Y.Const., Art. 6, § 20(a); S.D.Const., Art. 5, §§ 10, 25, is
silent as to any requirement that judges of the United States'
courts, including Justices of the Supreme Court, be lawyers or
"learned in the law." We note that in excess of 95% of all criminal
cases in England are tried before lay judicial officers.
See D. Karlen, Judicial Administration: The American
Experience 32 (1970); H. Abraham, The Judicial Process 246-247, and
n. 4 (2d ed.1968). We also note that many of the States in the
United States which utilize nonlawyer judges provide mandatory or
voluntary training programs,
see, e.g., Iowa Code Ann. §
602.50(6) (1975); La.Rev.Stat.Ann. § 49:251.1 (Supp. 1976);
Miss.Code Ann. §§ 7-5-59, 9 3 (1972); Mont.Rev.Codes Ann. § 93-401
(Supp. 1975); Nev. Rev Stat. § 5.026 (1973); N.Y. Uniform Justice
Court Act § 105 (Supp. 1975-1976); N.C.Sess.Laws, c. 956, § 11
(1975); N.D.Cent.Code § 27-108 (Interim Supp. 1975); Pa.Stat.Ann.,
Tit. 42, § 1214 (Supp. 19761977); Utah Code Ann. § 78-5-27 (Supp.
1975); and training manuals,
see, e.g., G. Brownlee, The
Montana Justice of the Peace and Police Judge (1970). The brief of
amicus curiae New York State Association of Magistrates
informs us that, of the States that have nonlawyer judges,
Delaware, Florida, Idaho, Iowa, Mississippi, Montana, New Mexico,
New York, North Carolina, North Dakota, Pennsylvania, Texas, Utah,
Washington, West Virginia, and Wyoming have mandatory training
programs, and Alaska, Georgia, Kansas, Louisiana, Missouri, Nevada,
New Hampshire, Oregon, South Carolina, Tennessee, Vermont, and
Wisconsin have voluntary training programs.
[
Footnote 5]
We observed in
Colten v. Kentucky that, in the
first-tier tribunals,
"[s]ome [States], including Kentucky, do not record proceedings
and the judges may not be trained for their positions either by
experience or schooling."
407 U.S. at
407 U. S. 114.
We took note of the Kentucky Court of Appeals' comment that
"'the inferior courts are not designed or equipped to conduct
error-free trials, or to insure full recognition of constitutional
freedoms. They are courts of convenience, to provide speedy and
inexpensive means of disposition of charges of minor offenses.'
Colten v. Commonwealth, 467 S.W.2d at 379."
Id. at
407 U. S.
117.
[
Footnote 6]
In
Shadwick, we cautioned:
"[O]ur federal system warns of converting desirable practice
into constitutional commandment. It recognizes in plural and
diverse state activities one key to national innovation and
vitality. States are entitled to some flexibility and leeway. . .
."
407 U.S. at
407 U. S.
353-354.
MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL joins,
dissenting.
Lonnie North was haled into a Kentucky criminal court and there
tried, convicted, and sentenced to a term of imprisonment by Judge
C. B. Russell. Judge Russell is a coal miner without any legal
training or education
Page 427 U. S. 340
whatever. [
Footnote 2/1] I
believe that a trial before such a judge that results in the
imprisonment of the defendant is constitutionally intolerable. It
deprive the accused of his right to the effective assistance of
counsel guaranteed by the Sixth and Fourteenth Amendments, and
deprives him as well of due process of law. [
Footnote 2/2]
Page 427 U. S. 341
I
A
The reasons why a defendant in a criminal trial needs a lawyer
to assist in his defense have nowhere been better put than in the
oft-quoted words of Mr. Justice Sutherland's opinion for the Court
in
Powell v. Alabama, 287 U. S. 45:
"The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of
counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because
he does not know how to establish his innocence."
Id. at
287 U. S.
68-69.
So it was that, beginning with the capital case of
Powell v.
Alabama, supra, extending through the felony case of
Gideon v. Wainwright, 372 U. S. 335, and
culminating in the misdemeanor case of
Argersinger v.
Hamlin,
Page 427 U. S. 342
407 U. S. 25, the
Court's decisions firmly established that a person who has not been
accorded the constitutional right to the assistance of counsel
cannot be sentenced to even one day of imprisonment.
But the essential presupposition of this basic constitutional
right is that the judge conducting the trial will be able to
understand what the defendant's lawyer is talking about. For if the
judge himself is ignorant of the law, then he, too, will be
incapable of determining whether the charge "is good or bad." He,
too, will be "unfamiliar with the rules of evidence." [
Footnote 2/3] And a lawyer for the
Page 427 U. S. 343
defendant will be able to do little or nothing to prevent an
unjust conviction. In a trial before such a judge, the
constitutional right to the assistance of counsel thus becomes a
hollow mockery -- "a teasing illusion like a munificent bequest in
a pauper's will."
Edwards v. California, 314 U.
S. 160,
314 U. S. 186
(Jackson, J., concurring).
B
In this case, Judge Russell denied a motion for trial by jury,
although, under Kentucky law, North was clearly entitled to a jury
trial upon request. Ky.Const. § 11; Ky.Rev.Stat.Ann. §§ 25.014,
26.400 (1971). And after finding North guilty, Judge Russell
proceeded to impose a sentence of imprisonment, although such a
sentence was clearly unauthorized by Kentucky law. Ky.Rev.Stat.Ann.
§§ 189.520(2), 189.990(10)(a) (1971)
But even if it were not possible to demonstrate in a particular
case that the lay judge had been incompetent or the trial
egregiously unfair, I think that any trial before a lay judge that
results in the defendant's imprisonment violates the Due Process
Clause of the Fourteenth Amendment. The Court has never required a
showing of specific or individualized prejudice when it was the
procedure itself that violated due process of law.
"[A]t times, a procedure employed by the State involves such a
probability that prejudice will result that it is deemed inherently
lacking in due process."
Estes v. Texas, 381 U. S. 532,
381 U. S.
542-543.
See Rideau v. Louisiana, 373 U.
S. 723;
Hamilton v. Alabama, 368 U. S.
52.
A trial judge is "charged with the duty of insuring that
justice, in the broadest sense of that term, is achieved in every
criminal trial."
Faretta v. California, 422 U.
S. 806,
422 U. S. 839
(BURGER, C.J., dissenting).
See Geders v.
Page 427 U. S. 344
United States, 425 U. S. 80,
425 U. S. 86-87.
Among the critical functions that a trial judge must frequently
perform are the acceptance of a guilty plea,
Henderson v.
Morgan, 426 U. S. 637; the
determination of the voluntariness of a confession,
Jackson v.
Denno, 378 U. S. 368; the
advising of the defendant of his trial rights,
Boykin v.
Alabama, 395 U. S. 238; and
the instruction of a jury,
Bollenbach v. United States,
326 U. S. 607,
326 U. S. 612.
A judge ignorant of the law is simply incapable of performing these
functions. If he is aware of his incompetence, such a judge will
perhaps instinctively turn to the prosecutor for advice and
direction. [
Footnote 2/4] But such
a practice no more than compounds the due process violation.
See In re Murchison, 349 U. S. 133,
349 U. S. 136.
[
Footnote 2/5]
The Kentucky Court of Appeals characterized the kind of trial
that took place here as an "absurdity." The trial,
Page 427 U. S. 345
in my view, was such an absurdity as to constitute a gross
denial of due process of law. [
Footnote
2/6]
II
The Court seems to say that these constitutional deficiencies
can all be swept under the rug and forgotten because the convicted
defendant may have a trial
de novo before a qualified
judge. I cannot agree.
In
Ward v. Village of Monroeville, 409 U. S.
57, the Court made clear that
"the State's trial court procedure [cannot] be deemed
constitutionally acceptable simply because the State eventually
offers a defendant an impartial adjudication. Petitioner is
entitled to a neutral and detached judge in the first
instance."
Id. at
409 U. S. 61-62.
See also Callan v. Wilson, 127 U.
S. 540 (right to trial by jury is right to a jury in
first instance).
The Court would distinguish the
Ward case as "directed
at the need for independent, neutral, and detached judgment, not at
legal training."
Ante at
427 U. S. 337.
But surely there can be no meaningful constitutional difference
between a trial that is fundamentally unfair because of the judge's
possible bias, and one that is fundamentally unfair because of the
judge's ignorance of the law. [
Footnote
2/7]
Page 427 U. S. 346
And the Court's suggestion that a defendant haled before a lay
judge can protect his constitutional rights by simply pleading
guilty and immediately seeking a trial
de novo is wholly
unpersuasive. First, this argument assumes without any factual
support that the defendant will be informed of his right to a trial
de novo. [
Footnote 2/8]
Second, the procedure would still necessitate multiple court
appearances, at the cost of both delay and an increased financial
burden for attorneys' fees and court costs. Third, such a practice
would turn what should be a solemn court proceeding,
see Boykin
v. Alabama, 395 U. S. 238,
into nothing more than a sham. 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.
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. . . ." Magna Carta
45. Today, more than 750 years later, the Court leaves that promise
unkept.
I respectfully dissent.
[
Footnote 2/1]
The judge at North's state habeas corpus hearing concluded: "I
think the fact has been established that [Judge Russell is] not a
lawyer, he doesn't know any law, he hasn't studied any law." Judge
Russell testified that he had only a high school education. He had
never received any training concerning his duties as a lay judge.
This is not a case, therefore, involving a lay judge who has
received the kind of special training that several States
apparently provide.
See ante at
427 U. S.
333-334, n. 4.
A study of California's lay judges made in 1972 showed that 37%
had no education beyond high school while 13% had even less formal
education.
Gordon v. Justice Court, 12 Cal. 3d
323, 330 n. 7, 525 P.2d 72, 76 n. 7. A 1966 survey revealed
that only 5% of Virginia's justices of the peace were college
graduates, Note, 52 Va.L.Rev. 151, 177, while, in 1958, one-half of
West Virginia's justices had not completed high school, Note, 69
W.Va.L.Rev. 314, 323. In 1969, The Assistant Attorney General of
Mississippi told the State's Judiciary Commission that
"33% of the justices of the peace are limited in educational
background to the extent that they are not capable of learning the
necessary elements of law."
Hearings on Justice of the Peace Courts and Judges before the
Mississippi Judiciary Commission (testimony of R. Hugo Newcomb,
Sr.), quoted in Comment, 44 Miss.L.J. 996, 1000 n. 31 (1973).
[
Footnote 2/2]
At least two state courts have held that such a trial violates
the United States Constitution.
Gordon v. Justice Court, supra;
Shelmidine v. Jones, No. 224948 (Utah 3d Jud. Dist., June 3,
1975).
Contemporary studies of American court systems have been
unanimous in calling for the elimination of nonlawyer judges.
See ABA Commission on Standards of Judicial
Administration, Court Organization § 1.21 (1974); National Advisory
Commission on Criminal Justice Standards & Goals, Task Force
Report: Courts, Standard 8.1 (1973); The President's Commission on
Law Enforcement and Administration of Justice, Task Force Report:
The Courts 36 (1967); Advisory Commission on Intergovernmental
Relations, State-Local Relations in the Criminal Justice System,
Recommendation 21 (1971); Consensus Statement of the National
Conference of the Judiciary, 55 J.Am.Jud.Soc. 29, 30 (1971).
[
Footnote 2/3]
Judge Russell testified that he had not received any training
concerning rules of evidence, and that he was not familiar with the
Kentucky statutes relating to jury trials, with the Kentucky rules
of criminal procedure, or with the rights guaranteed to a defendant
in a criminal case under the Fourteenth Amendment.
The deposition of a lay magistrate in a South Carolina case
provides another illustration of the inadequate legal background of
nonlawyer judges:
"Q. What books do you have . . . that deal with the duties of
Magistrate?"
"Magistrate McLendon: I got a stack of volume books from the
courthouse when I got the job, little red books."
"Q. What books are those sir, do you know the names of
them?"
"Magistrate McLendon: No, sir"
"Q. Tell me what your understanding of the Code of Laws is, what
is contained in the Code of Laws, as you understand?"
"Magistrate McLendon: Well I never have done any reading in
it."
"Q. You never have had occasion to refer to it?"
"Magistrate McLendon: No, sir."
Deposition of Magistrate Robert McLendon, Oct. 15, 1974, p. 110,
Frierson v. West, Civ. No. 74-1074 (SC May 15, 1975).
See generally Note, 61 Va.L.Rev. 1454, 1456 (1975); Note,
10 Harv.Civ.Rights -- Civ.Lib.L.Rev. 739, 746-755 (1975); Note, 69
W.Va.L.Rev. 314, 323-326 (1967); Comment, 44 Miss.L.J. 996,
1004-1008 (1973); Note, 53 Ore.L.Rev. 411, 428-430, 437 n. 187
(1974).
[
Footnote 2/4]
Judge Russell conceded that he relied on the city attorney for
legal advice:
"Q. Prior to your appointment as City Judge . . . had you had
any previous legal experience of any kind?"
"Judge Russell: No, sir."
"Q. Have you had any legal training of any kind since your
appointment ?"
"Judge Russell: Well, the only thing I can say, if I have any
doubt, I just consult with the city lawyer. . . . "
"
* * * *"
"Q. And when you receive advice from the city attorney, do you
follow that advice?"
"Judge Russell: Yes, sir."
See also Deposition of Magistrate Robert McLendon, Oct.
15, 1974, p. 116 in
Frierson v. West, Civ. No. 74-1074,
(SC May 15, 1975) (stating that in event of request for jury trial
he "would come to Mr. George Stuckey [the county attorney] and find
out what I had to do").
[
Footnote 2/5]
See Note, 53 Ore.L.Rev. 411, 430 (1974); Note, 61
Va.L.Rev. 1454, 1469-1470, n. 74 (1975); Note, 10 Harv.Civ.Rights
-- Civ.Lib.L.Rev. 739, 755 (1975).
[
Footnote 2/6]
The scarcity of lawyers or legally trained persons in rural
areas cannot serve to justify trials such as this. Utah, to cite
one example, has managed to devise a constitutionally adequate
trial system even though large portions of the State are sparsely
populated and 13 of its 29 counties have two or fewer lawyers.
See Utah House Bill No. 1, 1975 First Special Session,
amending Utah Code Ann. § 75.
See generally Note, 10
Harv.Civ.Rights -- Civ.Lib.L.Rev. 739, 763-767 (1975).
[
Footnote 2/7]
The Court's reliance on
Colten v. Kentucky,
407 U. S. 104, is
misplaced. The question in
Colten was not whether a trial
of the kind challenged here is constitutionally valid, but the
quite different question whether a greater sentence can be imposed
on a defendant following a trial
de novo without violating
North Carolina v. Pearce, 395 U.
S. 711.
[
Footnote 2/8]
The record indicates that North was taken to jail immediately
after sentencing and obtained his freedom only when the state
habeas corpus court on the following day signed a writ ordering his
release. It is hardly likely that North would have spent the night
in jail if he had been told that he could avoid jail simply by
asking for a trial
de novo.
The Court also states its assumption that Kentucky police court
judges will advise defendants of their right to counsel and that
counsel will advise their clients of their right to a trial
de
novo. See ante at
427 U. S. 335.
This assumption is also devoid of support in the present record.
Although Judge Russell stated that it was "the standard procedure"
to advise defendants of their right to counsel, he was unwilling to
state that he advised North of this right, and North unreservedly
testified that he was not so advised.