Young v. Konz, s. 44071

• Decision Date: 10 January 1977
• Docket Number: 44214,Nos. 44071,s. 44071
• Citation: 558 P.2d 791,88 Wn.2d 276
• Parties: Gary Robert YOUNG et al., Respondents, v. Stephen S. KONZ, as district court judge, Appellant. Oseas MUNOZ et al., Petitioners, v. Cecil HARPHAM, as police judge, Respondent.
• Court: Washington Supreme Court

Page 276

88 Wn.2d 276

558 P.2d 791

Gary Robert YOUNG et al., Respondents, v. Stephen S. KONZ, as district court judge, Appellant.

Oseas MUNOZ et al., Petitioners, v. Cecil HARPHAM, as police judge, Respondent.

Nos. 44071, 44214.

Supreme Court of Washington, En Banc.

Jan. 10, 1977.

As Changed Jan. 19 and Feb. 16, 1977.

Terry Austin, Yakima Valley Legal Services, Sunnyside Slade Gorton, Atty. Gen., Garry E. Wegner, Asst. Atty. Gen., Seattle, Mark Wilson, University Legal Assistant, Gonzaga University School of Law, Spokane, for appellant.

Colville Tribal Legal Services, David S. Edwards, Nespelem, Cecil Harpham, Police Judge, R. P. Reid, Toppenish, for respondents.

HUNTER, Associate Justice.

This is an appeal by the State from an order granting a writ of prohibition, entered on December 1, 1975, by the Superior Court for Ferry County. The writ of prohibition denies the judge of the Ferry County district court, and all other lay (non-attorney) judges, their jurisdiction over criminal misdemeanor matters, where a loss of liberty could result.

The judge of the Ferry County district court qualified for his position on that bench by passing a qualifying examination pursuant to RCW 3.34.060. He is not a lawyer, and the statute does not require him to be, since the district has less than 10,000 population.

Consolidated with this appeal is cause No. 44214, wherein we stayed proceedings on misdemeanor trials of six individuals being tried before the municipal police judge of Granger. He is a non-lawyer judge appointed by the mayor pursuant to RCW 3.50.040.

The issue in both cases is the same. Are the defendants denied due process under article 1, section 3, of our state constitution, and under the fourteenth amendment to the United States Constitution, when tried before a non-lawyer judge in a court of limited jurisdiction for a misdemeanor wherein a loss of liberty could result?

The judges in both causes are empowered to imprison defendants that come before them; their jurisdiction is the same as the criminal jurisdiction of attorney judges in district and municipal courts. (That includes all misdemeanors and gross misdemeanors, RCW 3.20.040; preliminary hearings, RCW 10.04.030 and RCW 10.16.010; bail RCW 3.50.210; warrants, RCW 3.50.160 and RCW 3.28.020.)

The judicial scheme for Washington is as follows. Article 4, section 17, of the state constitution requires that judges of the supreme court and the superior courts be admitted to practice law. The same requirement exists for judges of the court of appeals. RCW 2.06.050. The constitution is silent as to qualifications of judges for courts of limited jurisdiction, and there are no General qualifications provided by statute. (RCW 3.04.010 Et seq.). However, justices of the peace in cities of 5,000 or more must be attorneys. RCW 3.12.071. Municipal court judges need not be lawyers in municipalities with less than 5,000 people. RCW 3.50.040. District court or 'justice court' judges and justices of the peace must, if not attorneys, either have served as a justice of the peace or municipal or police court judge. In districts with less than 10,000 population, they are allowed to sit as judges if they pass an examination provided by the Supreme Court. RCW 3.34.060. Until recently, there was the requirement that justices of the peace and district court judges in second class (at least 70,000 population, RCW 36.13.010) and larger counties be attorneys. RCW 3.34.065. That statute, however, has since been repealed by Laws of 1975, 1st Ex. Sess., ch. 197, p. 654. The effect of the repeal is that any non-attorney who has served as justice of the peace, municipal judge or police judge prior to 1961 may stay on the bench or refile for the position without passing even a qualifying examination. RCW 3.34.060.

De novo review is available to all defendants. The review is in superior court, always before lawyer judges. RCW 3.50.410.

The petitioners (defendants) contend they will be denied a fair trial before the respective non-lawyer judges because the judges are not trained in law and hence will not recognize all the issues involved in affording a fair trial. They argue that difficult issues can arise even in misdemeanor trials, and bulwark their argument with a citation to the United States Supreme Court cases of the past 15 years that have significantly augmented the protections afforded defendants under the Constitution. They note that there are new rules of law constantly evolving under the Constitution in the areas of search and seizure, self-incrimination, double jeopardy, the admissibility of confessions, a speedy and public trial, compulsory processes, right to counsel, and acceptance of guilty pleas.

The only authority cited by petitioner which is in point if Gordon v. Justice Court, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974). The California Supreme Court there decided that state's system, insofar as it allowed non-attorney judges to preside over criminal trials where a loss of liberty could result, denied due process. The court reasoned that although a fair criminal trial was not impossible before a lay judge, the likelihood of a fair trial was substantially enough diminished that the procedure itself violated due process.

We do not find Gordon to be persuasive authority, since the United States Supreme Court has since found no federal due process or equal protection violation in a lay-judge system. North v. Russell, --- U.S. ---, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976).

Should it develop in this state that a defendant in superior court is denied a fair trial by erroneous application of the law, he may appeal, demonstrate the error to the reviewing court, and be granted a new trial. Due process of the law requires a fair trial for each defendant; the fair trial guarantee is protected Through the appeals process. It is conceded that a fair trial may in certain cases not be afforded by a non-lawyer judge, but we may properly point out that it is also true that a lawyer judge may commit error and thereby deny a fair trial. The due process safeguard in both cases is appeal, the one critical difference being that a defendant in a court of limited jurisdiction has the Automatic right to a new trial, irrespective of error in the first trial. This we find to be an adequate safeguard to meet due process requirements.

We agree that a more desirable system would be that which affords every civil litigant and defendant trial before lawyer judges in the first instance. However, our preferences are not sufficient to establish a due process violation under the present system.

The Utah Supreme Court, faced recently with a similar challenge to their system of lay judges in municipal courts, held that the system did not violate due process. Shelmidine v. Jones, Utah, 550 P.2d 207 (1976). The court reasoned that without the lay justice system an accused in that state's rural areas would often encounter inconvenience in delay of time and distance of travel, and therefore the system did more to Assure the constitutional guarantee of due process than to undermine it.

The Utah court stated that it was the legislature's province to revamp the courts of limited jurisdiction, and not the prerogative of the judiciary. Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the court emphasized circumspection in assuring that courts not yield to the 'allurements of power' and 'overreach into the roles intended for the executive and legislative branches.' Shelmidine v. Jones, supra at 210.

The following language on page 210 from Shelmidine reflects our sentiments.

We do not mean to be understood as saying that we shrink from the responsibility, when properly invoked, of giving due consideration to claims that legislative enactments are subordinate to the superior law: constitutional provisions. Also, it should be borne in mind that there is a definite distinction between a change in interpretation or application of a statute, which sometimes quite justifiably occurs, and attempting by judicial fiat to affect a substantial change in law as clearly expressed in a statute or the constitution. When such a substantial change is necessary or desirable, our constitution has set up procedures for the change by the legislature . . . by the amendment process.

We feel that eliminating lay judges is the province of the legislature in this state, as pertinent constitutional provisions indicate. Const. art. 4, §§ 1 and 10. The legislature is better able to act on our shared interest in upgrading the courts of limited jurisdiction, and at the same time preserve easy accessibility to a forum for the convenient, swift and inexpensive disposition of minor cases. ¹ We note that the Utah legislature quickly responded to the problem with an amendment once the issue had been raised to the court. Kentucky's legislature also acted to eliminate their lay judges, although the United States Supreme Court upheld their constitutionality, as we next discuss.

North v. Russell, supra, is the authority most helpful to our decision. The issues and arguments were essentially the same as we are presented with in this case:

Appellant argues that the right to counsel articulated in Argersinger v. Hamlin, supra, (407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)) and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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...