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Court of Appeal, Third District, California.

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.

Decided: July 03, 1973

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.

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 judge3 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 ĕing 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.


‘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 peremptory challenges under CCP § 170.6, but were made under CCP § 170.8, thus presenting to the Justice Court the same constitutional questions as in this case. Both motions were denied.

‘This suit was thereafter filed as a class action by petitioners in behalf of themselves and others similarly situated, against the respondent Courts and Judges thereof and all other Justice Courts and their Judges similarly situated, i. e., having and being non-lawyer Judges.

‘It is to be noted that petitioners do not direct their attack individually against the two named Judges and do not assert or maintain that either of them has any specific lack of qualifications not common to all other non-lawyer Justice Court Judges. The sole basis for the claim of lack of qualification is the absence of lawyer status. Indeed this is necessarily so, if this action is to be maintained as a class action; otherwise there would be absent the common questions of fact and law necessary to a class action. Petitioners maintain that the use of any non-lawyer Judge to preside over their trial, per se and without more, would violate their constitutional rights; as to Judges Dana and Miller, neither of them is claimed to be less qualified than any other non-lawyer Judge . . ..

‘Petitioners rest their due process contentions upon the basic constitutional right of every defendant to a fair trial. This right is claimed violated by trial before a lay Judge because [allegedly] such a Judge has inadequate training to grasp complex constitutional questions, is more likely to make errors of law, is more susceptible to advice from law enforcement people, is unable to further educate himself due to an inadequate law library, and is more apt to be swayed by his own personal prejudices as well as by local pressures. Because there are nearby districts or geographical areas wherein the same conduct of petitioners would be tried by lawyer Judges, petitioners claim a denial of equal protection of the laws.’

‘The qualifying requirements of Government Code § 71601 are not retroactive. Thus California now has a substantial number of non-lawyer Justices of the Peace a good many of whom (44 according to the petition—Paragraph 20) have never taken a qualifying examination. These Judges (who have not passed a qualifying examination) constitute a separate class which is not separately represented, there being no member of that class named as a party. Parker v. Bowron [1953] 40 C[al.]2d 344 [254 P.2d 6]. It is however included within the greater class of Judges who were never lawyers.'6

In the petition, ‘Numerous examples are given of misconduct on the part of nonlawyer Judges, including four charges of improper rulings by Judge Dana (Exhibits V, X, Z and CC) and one charge against Judge Dana's clerk (Exhibit T). Attitudes of certain non-lawyer Justice Court Judges are described (Exhibits M, P, BB and DD). Opinions of knowledgeable persons as to the advisability and propriety of non-lawyer Judges are expressed (Exhibits J, N and HH). Comments regarding the content and adequacy of the Judicial Council's tests for qualification of non-lawyer Justices of the Peace are given (Exhibits F, G, H, I and J). Impressions of litigants in Justice Courts are included (Exhibits O, Q, R and S). The absence of adequate law libraries in Justice Courts is noted (Exhibit M).’

The general demurrer to the petition admitted the truth of all well-pleaded facts, but not the conclusions of law, nor allegations of facts of which the court may take judicial notice. (Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 918, 113 P.2d 270; Saltares v. Kristovich (1970) 6 Cal.App.3d 504, 510, 85 Cal.Rptr. 866, and cases cited.) Since affidavits are not receivable for any purpose, save verification of the pleading, incorporation by reference in the pleading affords them no greater standing. (Code Civ.Proc. § 2009.) The trial court was privileged to take judicial notice of the reports of the Judicial Council, and of the Administrative Office of the California Courts, and we do. (Witkin, Cal.Evidence 2d (1966) §§ 154, 167; Evid.Code, § 450, comment.) ‘[I]n the consideration of a pleading the court must read the same as if it contained a statement of all the matters of which they are required to take judicial notice, even when the pleading contains an express allegation to the contrary.’ (Chavez v. Times-Mirror Co. (1921) 185 Cal. 20, 23, 195 P. 666, 668.)

From the 1973 Judicial Council Report, pages 307 and 230, we learn that in the year 1971–1972, justice courts in California handled 981,607 nonparking filings, which included felony preliminaries and misdemeanors not elsewhere classified. From the same report, page 230, it appears that 12,279 were felony preliminaries. From all of the municipal and justice courts in the same period throughout the state, there were only 2,126 appeals to the appellate departments of the superior court on questions of law—the criminal case—and approximately one-half of these were in Los Angeles County, which has only two justice courts, one with an attorney justice. (Id. at p. 259.) The other (Catalina) had only 321 nonparking filings for the year 1971–1972. (Id. at p. 310.)

Appellants claim there is a greater likelihood of judicial error when there is a non-lawyer judge presiding. This is probably mere supposition. The Fourteenth Amendment in its due process and equal protection clauses does not assure uniformity of judicial decisions, or immunity from judicial error. Otherwise, every judicial error would present a federal question. (Beck v. Washington (1962) 369 U.S. 541, 554–555, 82 S.Ct. 955, 8 L.Ed.2d 98, 110.) A judge satisfies the requirements of due process of law when he is fair, impartial and honest. The fact that he may commit error, be he a lawyer on non-lawyer, does not negate these qualities. If an individual judge is error-prone, no doubt his constituents will consider this at the next election, and if this reaches a stage of incompetence, the, Commission on Judicial Qualifications may act.

The expanded protections to the accused afforded in late decisions bearing the due process label, crosscutting the field of constitutional safeguards, have been definite enough in the enunciation of legal doctrine. The difficulties arise in application of the doctrines to the facts at hand. It is not established that a layman judge or layman jury is any more apt to err in this process than a lawyer or a judge. Prejudicial error as to the defendant's rights or the conduct of the trial may set a defendant free, safe from double jeopardy. The rights of the People suffer in such instances, where there is no effective right of appeal on the whole cause. (Pen.Code, §§ 1235, 1237, 1238, 1259, 1260.) Judicial error thus may work to the advantage of the defendant, and this advantage is the result of due process of law, and not the lack of it.

‘It is persuasively argued by petitioners that the right to counsel implies the right to a Judge who can comprehend counsel. But it does not follow that a Judge who is not or was not a lawyer cannot comprehend counsel. Nor does it follow that because constitutional questions raised at the Justice Court level are complex, they cannot be comprehended by Judges who are not lawyers. If this were so, what of the hundreds of legislators throughout the country who are constantly involved in the enactment of legislation involving subjects with constitutional considerations? It could be similarly argued that they are not competent to consider or pass upon such laws. What of the executive departments of the State and Federal Governments? Those who propose so many laws and who enforce them surely cannot be said to fail to comprehend them because they are not lawyers.

‘Whether a Judge in a given case comprehends counsel before him on constitutional questions depends upon the ability and willingness of the individual Judge to devote he necessary time and effort to a comprehension of the matters before him; not upon whether he possesses a law degree. It can be argued that a lawyer is more likely to possess these propensities than a non-lawyer, but this only involves us in a discussion of preferences, not constitutional rights.’

When lawyers assert that a justice of the peace does not comprehend counsel, there may not be any actual ‘communication gap’ but only the fact that comprehension does not presuppose agreement.

The possession of a license to practice law does not ipso facto invest a practicing lawyer, whether tyro or Nestor at the bar, with special knowledge or aptitudes in criminal law and procedure. Although the ambit of his study and experience may be limited to working practicalities which come before him, an experienced non-lawyer judge may be far more knowledgeable than many lawyers who appear before him, on petty cases, and even on preliminary hearings. Such information as has been presented concerning the background capabilities of these justices dispels any suggestion that they are incompetent because they have not formally passed the State Bar examination to become lawyers.7 Even before written qualification examinations were established, some laymen justices of the peace were serving as such. One cannot assume that they have learned nothing in such a period. The fact that they have retained their judgeships over such a period tends to indicate community satisfaction, a desirable factor in judicial administration.

The Legislature, it seems to us, cannot be faulted for lack of affirmative action to eliminate this class of justices, where attrition due to retirement, disability and death will phase it out. As was said in Salsburg v. Maryland (1953) 346 U.S. 545, 550, 74 S.Ct. 280, 283, 98 L.Ed. 281, 288: “To be able to find fault with a law is not to demonstrate its invalidity. . . . The problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.”

‘It is argued that the rural setting increases the probability of judicial bias where a non-attorney Judge presides. This argument cannot be accepted at all, for it applies equally to lawyers and non-lawyers. Conceding that such bias exists, deriving from the rural nature of Justice Courts, there is absolutely no merit to a claim that a law degree [or admission to the bar] will somehow magically immunize the lawyer Judge from such bias.’

‘Rural bias' presumably does not refer to any condition affecting the citizens of the judicial district, served by the justice of the peace. If it is assumed that the outsider is at a disadvantage, this pertains to municipal and superior courts as well. While they may be challenged for cause, and challenged peremptorily without any, jurors may be the ones most provincial in viewpoint. Yet, change of venue requires more than folklore concerning such attitudes to sustain a plea that a fair trial cannot be obtained.

‘The same holds for the argument that lay Justice Court Judges get advice from district attorneys or law enforcement personnel or are subject to local political pressures. How a Judge approaches his duties is up to the individual Judge. With whom he confers, by what he is influenced, why he functions as he does, are all subjective considerations applicable to any Judge, regardless of his background. There is nothing inherently suspect above the fact that he may not have a law degree,’ or may not have been admitted to the bar.

No doubt there have been, and perhaps are, some judges who once were admitted to the bar, who maintain a reputation for sound judgment, sustained by the advice of their clerks, reporters, and fellow judges with whom they have rapport. Where the information and advice is sound, it should matter little whether it was derived from the attorneys before him, the lectures of a law school professor, the Continuing Education of the Bar, or from friends at hand. There are ample means of protection against disqualifying bias or prejudice.

If in an individual case, a misdemeanor defendant feels that the judge is biased and prejudiced (for reasons of local pressures or for any other reasons), he has a remedy under Code of Civil Procedure section 170, subdivision 5.

‘Petitioners herein have the right of appeal if they are tried and convicted. But it is claimed by them that this remedy of appeal is inadequate, for a number of reasons. They are: (1) the distinction between a right to trial de novo on a civil appeal from a Justice Court and only a right of review on such an appeal in a criminal case; (2) there is no adequate record guaranteed on appeal;(3) a review on appeal does not always reflect or consider all the error of the trial Court, only the prejudicial error; (4) a reversal on appeal can never undo the harm done by the trial Court; and (5) the correctness of the trial Court result is presumed on appeal.’

These arguments are substantially rebutted by the language of St. Joseph Stock Yards v. United States (1935) 298 U.S. 38, 84, 56 S.Ct. 720, 740, 80 L.Ed. 1033, 1058: ‘But supremacy of law does not demand that the correctness of every finding of fact to which the rule of law is to be applied shall be subject to review by a court. If it did, the power of courts to set aside findings of fact by an administrative tribunal would be broader than their power to set aside a jury's verdict. The Constitution contains no such command.’

‘The 3rd, 4th and 5th contentions are applicable to all appeals in all cases; hence they cannot support petitioners' due process contention. The first contention has no merit for the same reason. Review on appeal with a retrial by the same trial Court in case of reversal is the rule; trial de novo is the exception.’ The constitutional requirements for the record on appeal from a justice court in a misdemeanor case are stated in March v. Municipal Court (1972) 7 Cal.3d 422, 428, and the United States Supreme Court cases cited therein. It is presumed all courts will comply, until proved otherwise in a given case. Any assumption that nonlawyer justices will not is gross speculation. Nothing in plaintiffs' second contention impels reversal of the judgment herein.

VI. DUE PROCESS OF LAW. There are at least two general approaches to ‘due process of law.’ In Gray v. Hall (1928) 203 Cal. 306, 265 P. 246, 252, our State Supreme Court stated: ‘Due course of law under the state Constitution and due process of law under the Federal Constitution mean the same thing. [Citation.] It is the right of a litigant to have his cause tried and determined under the same rules of procedure that are applied to other similar cases, and when this is afforded to him he has no ground to complain that due process of law is not being observed.’

Assuming that there is procedural due process, achieved through application of established legal procedures and norms, there must be a fair trial, before an impartial tribunal, at which the defendant may be heard. There is the absence of due process if the trial is infected with procedures or practices which violate ‘traditional concepts of fundamental fairness.’8

VI. DUE PROCESS UNDER THE CALIFORNIA CONSTITUTION. In interpreting the Constitution of California, no preference may or should be given to any part over any other part. Applying this standard, the use of lay judges in misdemeanor trials cannot possibly violate any provision of the California Constitution, because that very instrument establishes the distinctions between the qualifications of judges in the various courts, and directs the Legislature to determine the qualifications of judges in justice courts. Applying the rule of ‘expressio unius' we must conclude that the constitution does not forbid the qualifications set up by the Legislature. As to the Legislature, the constitution is a limitation, and not a grant of its unrestricted powers. (Fitts v. Superior Court (1936) 6 Cal.2d 230, 234, 57 P.2d 510.)

Since it does appear that the justice courts of California have been reorganized, and judicial qualifications upgraded, any failure of the Legislature to go further makes apropos the language of the United States Supreme Court in McDonald v. Bd. of Election Com. of Chicago (1969) 394 U.S. 802, at 809, 89 S.Ct. 1404, at 1408, 22 L.Ed.2d 739, at 745–746:

‘Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them. [Citations.] With this much discretion, a legislature traditionally has been allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind’ [citation]; and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.'

Petitioners place considerable importance on the role of the non-lawyer judge in preliminary hearings. For such purposes, they sit as magistrates. The hearing usually is no more determinative of the ultimate innocence or guilt, than the issuance of a warrant. Both involve the determination of ‘probable cause.’

In Shadwick v. City of Tampa (1972) 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783, it was held that although clerks of municipal courts were not lawyers or judges, they qualified as neutral and detached magistrates; and nothing in the Fourth Amendment prohibited them from so acting. Before the Federal Magistrate's Act of 1968 (82 Stats. 1107) United States Commissioners were held impliedly to be independent judicial officers for the purpose, though many of them were not lawyers or judges. (Id., 407 U.S. at p. 348, 92 S.Ct. at p. 2121, 32 L.Ed.2d at p. 787.) The court in its unanimous decision stated (407 U.S. at p. 351, 92 S.Ct. at p. 2123, 32 L.Ed.2d at p. 789):

‘Judges themselves take office under differing circumstances. Some are appointed, but many are elected by legislative bodies or by the people. Many enjoy but limited terms and are subject to re-appointment or re-election. . . . We will not vault requirements for the independence of a municipal clerk to a level higher than that prevailing with respect to many judges. . . .

‘Appellant likewise has failed to demonstrate that these clerks lack capacity to determine probable cause. . . . We presume from the nature of the clerk's position that he would be able to deduce from the facts on an affidavit before him whether there was probable cause to believe a citizen guilty of impaired driving, breach of peace, drunkenness, trespass or the multiple other common offenses covered by a municipal code. There has been no showing that this is too difficult a task for a clerk to accomplish. Our legal system has long entrusted nonlawyers to evaluate more complex and significant factual data than that in the case at hand. Grand juries daily determine probable cause prior to rendering indictments, and trial juries assess whether guilt is proved beyond a reasonable doubt. The significance and responsibility of these lay judgments betray any belief that the Tampa clerks could not determine probable cause for arrest.’

Significantly for the matter at hand, the Supreme Court stated (407 U.S. at p. 352, 92 S.Ct. at p. 2124, 32 L.Ed.2d at p. 790): ‘What we do reject today is any per se invalidation of a state or local warrant system on the ground that the issuing magistrate is not a lawyer or judge. Communities may have sound reasons for delegating the responsibility of issuing warrants to competent personnel other than judges or lawyers. . . . All this is not to imply that a judge or lawyer would not normally provide the most desirable review of warrant requests. But our federal system warns of converting desirable practice into constitutional commandment. It recognizes in plural and diverse state activity one key to national innovativeness and vitality. States are entitled to some flexibility and leeway in their designation of magistrates, so long as all are neutral and detached and capable of the probable cause determination required of them.’ (Fns. omitted.)9

The People of the State of California have expanded the legal or judicial experience requirements for judges of courts of record over the years. They might impose a requirement of experience as members of the state bar upon all persons elected or appointed as justices of the peace, either by constitutional amendment or by legislative enactment. The judicial history of the state shows this has been proposed, and rejected. The failure to adopt what some consider to be in the public interest (such as television in a courtroom) does not per se condemn justice court trials as unfair.

Generally a showing of identifiable prejudice is required in due process cases. (Beck v. Washington, supra, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98.) In Snyder v. Commonwealth of Massachusetts (1933) 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, the United States Supreme Court put the matter this way: ‘The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. [Citations.] Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.’

VII. DUE PROCESS UNDER THE FEDERAL CONSTITUTION. ‘The Constitution of the United States is of course the supreme law of the land, and controls rules, laws or practices sanctioned by any State. The Fourteenth Amendment guarantees due process and equal protection to all persons; petitioners claim that each of these guarantees is violated by California's Court structure, to the extent that it permits them to be tried by non-lawyer Judges. . . .

‘. . .

‘Under the due process clause of the Federal Constitution, the petitioners, as well as all persons, possess the basic right to a fair trial. Tumey vs. State of Ohio, 273 U.S. 510 [47 S.Ct. 437, 71 L.Ed. 749]. The right to counsel is guaranteed to all criminal defendants, . . .. In Re Smiley, 66 C2d [Cal.] 606 [58 Cal.Rptr. 579, 427 P.2d 179]. Counsel of course must be qualified counsel, licensed to practice in this State. Government Code § 6000 et seq. Petitioners argue that it must follow that the Judge who presides over the trial of a misdemeanor case must also possess at least the qualifications of a lawyer, otherwise the right to counsel is meaningless and no fair trial can be had.’

The Kentucky Court of Appeals in Ditty v. Hampton, supra, 490 S.W.2d 772, 774, properly remarked: ‘The function of the court is not to defend the accused or represent him, but to decide fairly and impartially. An accused needs counsel to defend him, as pointed out in Gideon v. Wainwright because the government employs lawyers to prosecute him—because our system of criminal justice is an adversary system. But the judge is not one of the accused's adversaries, and is not there either to defend or to prosecute him. So the fact that the accused needs a lawyer to defend him does not mean that he needs to be tried before a lawyer judge.’

If the inadequacies of his counsel reduce the trial to a farce or sham, an accused may assert a denial of due process. By analogy, if the inadequacies of a trial judge reduce the trial to a farce or sham, there is a denial of due process. But it does not follow that trial with a non-lawyer in the justice's bench per se reduces the trial to such a level. The denial of due process in such instances is established, if at all, by the proceedings in an individual trial, not as a matter of wholesale presupposition.

We do not repeat here references to the federal cases considered earlier in this opinion. As applied to the issues involved, they do not support the claim of appellants that there is a denial of due process of law in permitting non-lawyers to serve as justices of the peace.

‘One final and very fundamental reason exists which prohibits any speculation as to whether the Federal Constitution forbids the use of non-lawyer Judges in misdemeanor trials. United States Supreme Court Justices possess the greatest judicial power in the land over all cases within the scope of Federal jurisdiction, including constitutional questions; from their decision there is no further appeal. Justices of the Peace have by comparison extremely limited jurisdiction, and their decisions are subject to review on appeal. It would be a bizarre conclusion indeed if the Federal Constitution were held to require a law degree for Justices of the Peace if it does not require one for the Chief Justice of the United States Supreme Court. The Constitution provides specifically for certain qualifications of certain Federal officials, including the President; it imposes no restriction whatever upon those who might hold the office of Supreme Court Justice. See Footnote on page 1167, Watson on the Constitution. It must be concluded that since the Federal Constitution does not require that United States Supreme Court Justices be lawyers, it does not impose that requirement upon Justices of the Peace.’

VIII. EQUAL PROTECTION. In Whittaker v. Superior Court (1968) 68 Cal.2d 357, 367 et seq., 66 Cal.Rptr. 710, 438 P.2d 358, after reviewing the authorities on the subject, the California Supreme Court states at page 370, 66 Cal.Rptr. at page, 720, 438 P.2d at page 368: ‘The principle which we derive from these cases . . . is this: Legislative classification as to treatment and procedure within a state judicial system according to factors such as geographical area, population, or other relevant considerations, does not deny equal protection of the laws unless such classification is shown to be palpably arbitrary and without a sound basis in reason.’

‘Tested against this rule, the equal protection claim of petitioners must fail. Within the geographical areas of Justice Court jurisdiction, all persons are treated the same. There is no ‘inherent unfairness' involved, nor anything of a ‘hostile or invidious' nature, such as to offend the spirit of equal protection.’

The intrinsic validity of classification of judicial districts, some of which will have laymen as judges, while others require lawyers, has been sustained by our courts, as well as others in similar situations. (Consult: Shea v. Kerr (1934) 1 Cal.2d 604, 606, 36 P.2d 189; cf., Samuels v. Hite (1950) 35 Cal.2d 115, 216 P.2d 879; In re Bartz (1955) 47 Wash.2d 161, 287 P.2d 119; State ex rel. Lindsey v. Derbyshire (1914) 79 Wash. 227, 140 P. 540, 544: ‘Where the exact line between the larger and smaller populations should be drawn is necessarily a matter of legislative discretion.’ Again, ‘[a]ll presumptions favor the legislative classification, which cannot be overturned unless plainly arbitrary. [Citations.] If the Legislature could have acted upon any conceivably reasonable ground, the courts must assume that the Legislature acted upon such basis.’ (Fraenkel v. Bank of America (1953) 40 Cal.2d 845, 849, 256 P.2d 569, 571; cf., City of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 811, 306 P.2d 453; Whittaker v. Superior Court, supra, 68 Cal.2d 357, 66 Cal.Rptr. 710, 438 P.2d 358.)

While it may be true as asserted by appellants that some justice courts are near populous centers, it likewise is true that some non-lawyer justices serve in remote areas. Neither the volume of cases nor the financial ability of the community justify full-time service. In some counties, if a lawyer was elected justice of the peace, no other lawyers would remain in the county to appear before it. In 24 districts where the justice of the peace was a layman, it was determined in 1967 that the number of available attorneys varied from none to 29 in those districts; in some of those districts, no attorneys had sought the office, and in others attorneys who had sought to be elected were rejected by the voters. (Qualifications of California Justice Court Judges by Mary T. Hennessy (1972) 3 Pac.L.J. 439, 456.)

The 1973 Judicial Council of California Annual Report (p. 230) states: ‘In 1971–72 filings ranged from a low of 16 to a high of 21,285 per judge in the justice courts, with an average caseload of 4,343 cases per judge. Municipal courts, in comparison, had an average caseload of 13,827 cases per judge. The smaller number of filings in most justice courts is accounted for by the fact that justice courts are generally located in the less populous areas of the state. Approximately two-thirds of the justice courts had less than 5,000 cases filed, while only seven courts had filings exceeding the average per judge caseload of the municipal courts . . ..’

Such circumstances suggest valid reasons sustaining the legislative classification.

In Ditty v. Hampton, supra, 490 S.W.2d 772, 776, the Kentucky court stated: ‘We can conceive of the following possible reasonable basis for the classification here in question:

‘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. Cf. Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197. That population and area factors may justify classifications within a court system has long been recognized. See Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989. . . .

‘The reasonableness of the bases for the classification in issue must be measured in the light of the possible detriment that members of the public may suffer from the classification. There has been no showing in this case that nonlawyer police judges, proportionately, convict more defendants, impose higher sentences, or are reversed more on appeal than lawyer judges. There is no basis for any finding that they are less fair and impartial in cases in which the defendant, as he is entitled, is represented by counsel, or that their ignorance of the law harms the accused more than the government. There is no support for the assertion that the nonlawyer judge, generally, will accept the prosecutor's version of the law rather than that of defense counsel.

‘We conclude that the bases for the classification reasonably justify the classification in the balance of the bases against possible detriment factors.’

If a defendant is denied equal protection of the law, because he appears before a non-lawyer judge, whereas, in the adjacent district the justice of the peace is required to be a lawyer, why cannot the defendant in that district claim a denial of equal protection of law, in that in the next district, a judge of the municipal court trying the same misdemeanors was required to have been a member of the state bar for five years immediately preceding selection, or to have served as a judge of a court of record in the state for that period? Or if he was before such a judge in a municipal court, could he validly claim unequal protection of the laws because a judge of the superior court, trying misdemeanors on a reduction of charges has been required to have such qualifications for ten years preceding his selection to that court? We apprehend the answer must be ‘no.’

The United States Supreme Court has spoken on this question unequivocally. In McGowan v. Maryland (1961) 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, a Sunday closing law was held valid, notwithstanding numerous exemptions. It was held that the equal protection clause was not violated, by the fact that retailers in one county were exempted from the law. The court stated (at p. 427, 81 S.Ct. at p. 1106): ‘But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas and that territorial uniformity is not a constitutional prerequisite.’

In judicial organization, Maryland uniquely provided separate judicial systems in different counties. Before the cases with which we are familiar now, illegally obtained evidence was banned in some courts, but allowed in others. This diversity was alleged to deny equal protection of the laws. The United States Supreme Court in Salsburg v. Maryland, supra, 346 U.S. 545, 550, 74 S.Ct. 280, 283, 98 L.Ed. 281, held: ‘We find little substance to appellant's claim that distinctions based on county areas are necessarily so unreasonable as to deprive him of the equal protection of the laws guaranteed by the Federal Constitution. The Equal Protection clause relates to equality between persons as such rather than between areas. This was established long ago in a decision which upheld a statute of Missouri requiring that, in the City of St. Louis and four counties, appeals be made to the St. Louis Court of Appeals, whereas appeals made elsewhere in that State must be directed to the Supreme Court of Missouri.’ Quoting from Missouri v. Lewis (1879) 101 U.S. 22, 31, 101 L.Ed. 989, to the same effect, and stating: ‘If diversities of laws and judicial proceedings may exist in the several States without violating the . . . Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State.’

The appellants have relied upon Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. The established doctrine there stated was that if a state classification restricts a ‘fundamental right’ a ‘compelling state interest’ must justify the restriction. There being no constitutional right to trial by a lawyer-justice in a justice court, or fundamental protected interest invaded, the Shapiro case is not applicable.

The ‘possibility’ that under assumed circumstances the defendant might be under certain disadvantages has been equated by appellants with ‘probability.’ There are perhaps only a few legal situations which could not possibly arise. But when the judicial system is attacked generally, and not in reference to specific individual deprivations of right, it cannot be overturned because of ‘possible’ deprivations of right, without considering whether or not they are ‘probable.’ One definition of ‘probable’ is that which is expected to happen, subject to slight doubt, in given circumstances (cf., People v. Jaurequi (1956) 142 Cal.App.2d 555, 559, 298 P.2d 896); or more apt to to happen than not, ‘supported by evidence strong enough to establish presumption but not proof.’ (Webster's Seventh New Col. Dict. (1967).)

In its progressive upgrading of the court system, we affirm the conclusions of the trial court that the use of non-lawyer judges in certain justice courts, as provided by the Legislature under the permissions of the state constitution conforms to procedural due process; and that the use of non-lawyer judges does not offend ‘some principle of justice rooted in the traditions and conscience of our people as to be ranked as fundamental.’ (Snyder v. Commonwealth of Massachusetts, supra, 291 U.S. 105, 54 S.Ct. 330, 78 L.Ed. 677.) Accepting due process as a living principle, advancing standards or changing conditions have not yet made the lawyer judge in all justice courts a condition necessary to fundamental fairness, nor the absence of a lawyer judge in some of the justice courts ‘shocking to the universal sense of justice.’ (Cf., Gray v. Whitmore (1971) 17 Cal.App.3d 1, 20, 94 Cal.Rptr. 904, 914; People v. Troche (1928) 206 Cal. 35, 42, 273 P. 767; City of Los Angeles v. Oliver (1929) 102 Cal.App. 299, 323, 283 P. 298; Kalloch v. Superior Court (1880) 57 Cal. 134, 135.)

Judicial imposition of a requirement upon a state to insist upon a law degree (or admission to the bar) as a prerequisite to judicial qualification at the justice court level would be to legislate affirmatively an arbitrary minimum standard. The contents of the petition, including the specific instances of misconduct attributed to certain non-lawyer judges, are proper to be directed to the Legislature for its consideration. The Legislature can adopt such a standard. This court cannot and should not legislate it into existence under the guise of constitutional compulsion.

There being no violation of the equal protection clauses of our constitutions, and no denial of due process of law under either to appellants or to the class they allegedly represent, the judgment is affirmed, with costs to respondents.



1.  We do not reach the question of whether this is a proper class action (cf., Gerhard v. Stephens (1968) 68 Cal.2d 864, 69 Cal.Rptr. 612, 442 P.2d 692; City of Chino v. Superior Court (1967) 255 Cal.App.2d 747, 63 Cal.Rptr. 532; Barber v. California Emp. Stab. Com. (1954) 130 Cal.App.2d 7, 278 P.2d 762); nor whether the individual justices, asserted to be unqualified, are indispensable parties. (Code Civ.Proc. § 389; cf., Miracle Adhesives v. Peninsula Tile Assn. (1958) 157 Cal.App.2d 591, 595, 321 P.2d 482; Beaumont v. Samson (1907) 5 Cal.App. 491, 494, 90 P. 839; Town of Susanville v. Long (1904) 144 Cal. 362, 365, 77 P. 987.)

2.  They include: (1) mandamus to compel action, and prohibition to restrain the assertion of jurisdiction; (2) appeal; (3) review of judicial conduct by the Judicial Qualifications Commission, and the Supreme Court; (4) a defendant is entitled to counsel, and if indigent, counsel is to be provided; (Argersinger v. Hamlin (1972) 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530); (5) challenge of a judge for cause is provided by Code of Civil Procedure section 170; and one challenge upon simulated cause without substantiation (a statutory ‘king's-ex’) is afforded; (6) magisterial action in holding a defendant over for trial in the superior court is reviewed by that court; (7) in search and seizure cases, the motion to exclude evidence may be renewed in the superior court (Pen.Code, §§ 1510, 1538.5); (8) informations can be attacked in the superior court, for want of probable cause, as well as indictments (Pen.Code, § 995); (9) habeas corpus may be used to review improper convictions and confinement (Pen.Code, § 1474; In re Martha (1954) 122 Cal.App.2d 654, 265 P.2d 527; In re Delgado (1930) 107 Cal.App. 688, 290 P. 589; In re Pate (1939) 33 Cal.App.2d 641, 92 P.2d 643; In re Williams (1920) 183 Cal. 11, 190 P. 163); (10) egregious albeit legal conduct on the part of a justice of the peace may defeat him for reelection (cf., Frazier v. Moffatt (1951) 108 Cal.App.2d 379, 385, 239 P.2d 123).

3.  We are pleased to acknowledge and adopt portions of the excellent and perceptive opinion of Honorable George E. Paras in the trial court; and unless indicated otherwise by the context, quotation marks throughout this opinion show such adoption.

4.  Section 71601. ‘Judge; qualifications. No person is eligible to the office of judge of a justice court unless he either has been admitted to practice before the State Supreme Court or has within four years preceding his election or appointment passed a qualifying examination under regulations prescribed by the Judicial Council. So long as a person who qualifies for the office of judge by passing such examination remains an incumbent of such office, he shall be eligible to election or re-election to such office. This section does not apply to the incumbent of a superseded inferior court who succeeds to the office of judge of a justice court or is elected to such office at the first election of judges pursuant to the Municipal and Justice Court Act of 1949 or the provisions of law succeeding that act, or who seeks re-election to such office. (Added Stats.1953, c. 206, p. 1283, § 1, as amended Stats.1959, c. 735, p. 2724, § 1.)’

5.  Counsel have cited the informative article, Qualification of California Justice Court Judges by Mary T. Hennessy (1972) 3 Pac.L.J., p. 439, et seq., which sketches the history of the justice courts in California, and is a ready reference to Judicial Council studies and action respecting such courts.

6.  As of May 22, 1972, the official files of the Judicial Council show ‘There are currently 221 justice courts in the state, with four of the courts having a vacancy in the office of judge. The total of 217 justice court judges includes 80 lawyers, 117 non-lawyer examines and 20 laymen incumbents blanketed in during the 1951 reorganization of the lower courts.’ Current data concerning Justice Courts is found in the 1973 Judicial Council Report, pages 307–316, 229–232, 161, 41–42, 259.

7.  Consult Hennessy, op. cit., 3 Pac.L.J., pages 444–448, Profile of the California Justice Court Judge. A great number have college degrees; some have been graduated in law without having passed the bar. Others are engaged in law studies. Fourteen of the lay judges are women. Thirty-five were formerly peace officers.

8.  Consult: People v. Gonzales (1942) 20 Cal.2d 165, 170, 124 P.2d 44.

9.  In California, the case of Serenko v. Bright (1968) 263 Cal.App.2d 682, 692, 70 Cal.Rptr. 1, involved the matter of a claim that it is a denial of due process to permit non-lawyer referees to adjudicate license revocation hearings in the Motor Vehicle Department. The court held that due process is not violated by this practice, following the precedent of Anderson v. Board of Dental Examiners (1915) 27 Cal.App. 336, 149 P. 1006.

DAVID,* Associate Justice. FN* Assigned by the Chairman of the Judicial Council.

RICHARDSON, P. J. and FRIEDMAN, J., concur. Hearing granted; WRIGHT, C. J., MOSK and SULLIVAN, JJ., did not participate. MOLINARI, DEVINE and HAROLD C. BROWN, JJ., sitting.