Gordon v. Justice Court of Yuba City, Sutter County

• Citation: 33 Cal.App.3d 230,108 Cal.Rptr. 912
• Court: California Court of Appeals
• Decision Date: 03 July 1973
• Parties: Lewis GORDON and Santiago Arguijo, individually and on behalf of all other persons similarly situated, Petitioners and Appellants, v. The JUSTICE COURT OF YUBA CITY, SUTTER COUNTY, California, et al., Respondents; The PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 13384.

Page 912

108 Cal.Rptr. 912

33 Cal.App.3d 230

Lewis GORDON and Santiago Arguijo, individually and on behalf of all other persons similarly situated, Petitioners and Appellants, v. The JUSTICE COURT OF YUBA CITY, SUTTER COUNTY, California, et al., Respondents;

The PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 13384.

Court of Appeal, Third District, California.

July 3, 1973.

As Modified July 18, 1973.

For Opinion on Hearing, see 115 Cal.Rptr. 632, 525 P.2d 72.

Burton D. Fretz, Cal. Rural Legal Assistance, Santa Maria, for petitioners and appellants.

Harry Woolpert, San Luis Obispo, Burt Danziger, Marysville, James D. Lorenz, Jr., San Francisco, Peter Haberfeld, Los Angeles Marshall Hartman and Nancy Goldberg of Nat'l. Legal Aid & Defender Assn., Chicago, Ill., amicus curiae for petitioners-appellants.

Evelle J. Younger, Atty. Gen., by Charles P. Just, Deputy Atty. Gen., Sacramento, for respondents.

Charles Kaplan, Los Angeles, for amicus curiae.

DAVID, ^* Associate Justice.

I. NATURE OF THE CASE. Petitioners appeal from a judgment, after a demurrer sustained without leave to amend, rejecting their claim that their pending misdemeanor trials would deny them due process of law, and equal protection of the laws, in that the justice of the peace presiding had never been admitted to the bar, and because other misdemeanants by the facts of geography and the action of the authorities were afforded trials in like cases, before lawyer justices.

Urging that due process and equal protection of the laws is denied, per se, to all those who may be tried on criminal charges before lay justices, the action is asserted to be a class action on their behalf. As to Gordon and Arguijo, the named defendants, the action is moot. Each long since pleaded guilty, and sentences were pronounced on charges pending against them (while others were dismissed). Counsel persist in maintaining the appeal, as a 'class action.' ¹

II. MOOTNESS. With the stalking-horses for the test suit scratched from the action, we face the rule that our duty is "to decide actual controversies . . . and not to give opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue . . ..' (Consol. Corp. v. United etc. Workers (1946) 27 Cal.2d 859, 863, 167 P.2d 725, 727.) Whether improvidently or not this court denied a motion to dismiss upon this ground, because of possible public interest and because until now, there has been no definitive legal ruling in California upon the issues presented. (Diamond v. Bland (1970) 3 Cal.3d 653, 657, 91 Cal.Rptr. 501, 477 P.2d 733.)

III. BACKGROUND CONSIDERATIONS. Unless there is a constitutional requirement otherwise, the general rule is that a judge need not be an attorney. (30A Am.Jur., Judges, § 11; 48 C.J.S. Judger § 14, and cases cited.) A few recent cases reject the contentions made by appellants. (Crouch v. Justice of the Peace Court of Sixth Precinct (1968) 7 Ariz.App. 460, 440 P.2d 1000; Melikian v. Avent (D.C.N.D.Miss.1969) 300 F.Supp. 516; Ditty v. Hampton (Ky.app.1972), 490 S.W.2d 772.) While disqualifying mayors, as judges, for probable bias because of their financial interest in the fines collected, the United States Supreme Court did not disqualify them as judges because they were laymen. (Dugan v. Ohio (1928) 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784; Tumey v. Ohio (1926) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, judges' pay under a fee system is disqualifying; Ward v. Village of Monroeville (1972) 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267, accord, disqualification where there was a union of duty to raise city revenues, and the power to levy fines.) Under Florida law, determination of probable cause for issuance of warrants by a court clerk, not a lawyer or judge, has been held within his capabilities and not inhibited by due process considerations, where he was impartial and independent. (Shadwick v. City of Tampa (1972) 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783.)

IV. HISTORICAL. The development of the office of justice of the peace is sketched briefly in Frazier v. Moffatt (1951) 108 Cal.App.2d 379, 383-384, 239 P.2d 123. In England, its beginnings have been traced to 1264, when by statute, custodians of the peace were organized.

In the United States, the justice court became traditionally the court of almost every organized township, a court of the people close to everyman's door. The right of the citizen to be judged by his fellows in small legal matters, as well as the large, embraced more than the composition of the juries, but extended to the justice of the peace as well; where not to be a lawyer was an asset with a distrustful public, rather than a liability, in early America.

Originating in local self-government, this office like most others was subject to the egalitarian insistence that in America, any man might be elected or appointed to it. The public has been ambivalent. Permitting only minimum formal requirements on the one hand, but recognizing the perils of amateurism on the other, the public has provided countervailing checks and balances to limit errant vagaries of official action. As applied to justice courts in California, these are considerable. ²

The opinion of the learned trial judge ³ noted: 'Article 6 of the California Constitution deals with the California Court System. Section 1 specifies and enumerates the five Courts of the State and provides that all but the Justice Courts are Courts of record. Section 15 specifies the qualifications of Judges of the Courts of record, requiring them to have been lawyers . . ..' No qualification is specified for justice court judges, save that the Legislature shall prescribe them. 'Article 6, Section 5 provides for the establishment and maintenance of Justice Courts and Judges thereof according to geographical districts and population. This eing so, the use of nonlawyer judges in one area and the use of lawyer Judges in a neighboring area are matters which have received the express blessing of the California Constitution.'

The Legislature discharged its duty to prescribe the qualifications of justices of the peace, by the enactment of Government Code section 71601. ⁴

We take notice of the constitutions and statutes of our sister states in respect to judicial qualifications, reference to which is tabulated in the brief of amici curiae, on behalf of appellant. In Massachusetts and New Hampshire, no legal qualifications are stated for any judicial office. The inferior courts, variously named as justice courts, magistrates, mayor's courts, police courts, and city courts, are found in all states. Non-lawyer judges are permitted in such courts in all but fifteen states, though in some states there are classes of such courts in which the justice must be a lawyer.

In Tumey v. State of Ohio, supra, 273 U.S. 523, 47 S.Ct. 441, the court states:

'All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion. . . . [I]n determining what due process of law is, under the Fifth or Fourteenth Amendment, the court must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, which were shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.' And at page 534, 47 S.Ct. at page 445, the court further stated: 'It is, of course, so common to vest the mayor of villages with inferior judicial functions that the mere union of the executive power and the judicial power in him cannot be said to violate due process of law.'

We have further guidance from the United States Supreme Court as to its reluctance to declare violative of due process, a practice which is traditional and of long standing. In Jackman v. Rosenbaum (1922) 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107, the court states:

'The Fourteenth Amendment, itself a historical product, did not destroy history for the states and substitute mechanical compartments of law all exactly alike. If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . .'

We need not review the long history of the justice courts in California, culminating in the Municipal and Justice Court Act of 1949 (Stats.1949, ch. 1510), consolidating courts such as police courts, city courts, recorder's courts and the justice courts. ⁵ Fifty-one municipal court districts were established. In the rural areas, there was strong opposition to abolition of laymen justices, and Government Code section 71601 was the resulting compromise, calling for a qualifying examination of non-lawyers becoming candidates for such judgeships. Since 1953, the Judicial Council has given such tests, and they have become progressively more difficult.

V. DETAILS CONCERNING PETITIONERS AND THEIR CONTENTIONS.

'The petitioners are Lewis Gordon and Santiago Arguijo, who are defendants accused of misdemeanor crimes in the Yuba City Justice Court and the Grover City Justice Court, respectively. Respondents Judge Miller and Judge Dana are non-lawyer Judges of the foregoing two respondent Justice Courts. Judge Miller was elected to his office (Yuba) in 1961 after becoming eligible by passing a special qualifying examination prescribed by the respondent Judicial Council of the State of California. Judge Dana was elected to his office (Grover City) in 1958 and presumably passed a similar examination. Constitutional questions are involved in the Justice Court cases of both petitioners.

'Motions were made by both petitioners to disqualify Judges Miller and Dana upon the ground of their lack of qualifications, which motions were denied. These were not...