Town and village justices, many of them non-lawyers elected in light turnout contests and sitting in small courtrooms in their hometowns, are the face of the New York justice system.
Despite legal challenges, occasional gaffes by the few and a swirl of constitutional litigation, these judges resolve more than a million traffic violations, misdemeanor complaints, town ordinance disputes and landlord and tenant squabbles annually in a century-and-a-half-old system of homegrown justice that still merits substantial respect and approbation.
These judges face new hurdles as the winds of change buffet New York’s local court systems. But, based on my brief experiences as the supervising judge for five counties and more than 150 local judges, these committed men and women are up for the challenge.
Lay judges in local courts in New York span more than 200 years. Alexander de Tocqueville in 1831 praised this tradition: “The justice of the peace is an enlightened citizen, but who is not necessarily versed in knowledge of the law.” He added: “Americans have appropriated the institution of justices of the peace, while removing it from the aristocratic character that distinguishes it in the mother country.”
Despite this aging endorsement, the current constitutional status of lay judges remains somewhat uncertain. In North v. Russell, 427 U.S. 328 (1976), the Supreme Court held a non-lawyer judge can constitutionally oversee a criminal case provided the defendant has an opportunity to be heard by a law-trained judge through trial de novo. The Court did not take the next — and some would argue inevitable — step and determine whether having a non-lawyer judge hear a criminal case without a de novo trial violates the federal due process clause.
Decided more than 40 years ago, North v. Russell left courts all over the country scrambling for an answer, either under the federal constitution or state constitutions. This year, the Supreme Court eschewed a chance to clarify the status of non-lawyer judges. In Davis v. Montana 371 P.3d 979 (Mont. 2016), cert den’d 2017 U.S. LEXIS 724 (U.S., Jan. 17, 2017), the Court denied certiorari to a state court which held there was no fundamental right to a lawyer judge when a defendant is tried in a court of record. The Montana Supreme Court held even without a trial de novo a district court’s appellate review procedures sufficiently safeguard a defendant’s due process rights and a license to practice law is not necessarily required to ensure a fair and unbiased trial.
After North v. Russell and in the absence of further direction from the Supreme Court, state courts have grappled with the use of non-lawyer judges. The New York Court of Appeals has twice rebuffed efforts to bar non-lawyer judges from hearing criminal misdemeanor cases. In People v. Skrynski 42 NY2d 218 (1977), the court noted the state Constitution authorized continuation of non-lawyer judges in town and village courts and their presiding did not violate requirements of the federal Constitution because the defendant had a right under the Criminal Procedure Law to transfer the case to a superior court. CPLR 170.25.
Six years later, in People v. Charles F., 60 NY 2d 474 (1983), the Court, by a narrow 4-3 split, extended its ruling holding there was no state or federal constitutional right to an attorney judge and adding the mere allegation that a judge lacks legal training does not mandate removal to a superior court under CPL 170.25. To buttress its holding, the court majority critically noted there was no evidence of any prejudice to the defendant by the non-lawyer judge as there were no allegations of trial errors or missed objections.
A strong three-person dissent, authored by then-Justice and eventual Chief Justice Kaye may cast some suspicion on the continued vitality of the People v. Skrynski holding, as the newly constituted Court of Appeals — with seven new members appointed in the last decade — may find Justice Kaye’s dissent more persuasive in the light of recent interpretations of the rights of criminal defendants under the state Constitution.
However, the lower courts continue to abide by the holdings in People v. Charles F. and People v. Skrynski. In People v. DiSalvo, 14 Misc. 3d 561 (County Ct. Essex Cty 2006), for example, the court declined to remove a case from the local court, holding neither length of tenure as a justice nor mere admission to practice law, by themselves, are adequate indicators of competence or fairness in the judicial handling of a matter. The court added non-lawyer judges in this state not only receive regular judicial training but also have access to a legal resource center staffed by attorneys should they wish to seek assistance with any matter, complicated or not.
In all of these debates in state appellate courts, there is no evidence of actual prejudice or established violations of due process to defendants when a non-lawyer judge presides over a criminal matter. State courts have noted substantial training of non-lawyer judges and preservation of appellate review — both extant in New York — protect defendant’s due process rights. See e.g., Treiman v. State ex rel. Miner, 343 So. 2d 819 (Fla. 1977) (adequately trained lay judge presiding over criminal trial did not violate due process). As the Supreme Court of New Mexico intoned: “fairness is not so inextricably tied to the education of an attorney that without such an education a municipal court judge cannot be fair.” Tsiodia v. Rainaldi, 547 P.2d 553, 555 (N.M 1976),
While their constitutional status seems secure, New York’s local judges face a new challenge in the implementation of eventual statewide plan to provide defendants with counsel at all arraignments, the initial “critical phase” of any criminal case. For decades, local judges have been called for arraignments at all hours of the day and night and, most often, defendants appeared without counsel. Local judges were required to determine bail applications and attend to other preliminary matters without the defendant having the benefit of counsel.
The Court of Appeals held in 2010 that counsel was “critical” at the arraignment phase and the state later settled these claims by agreeing to implement, in five counties, a plan for making counsel available at all arraignments, regardless of the time of day. The state Legislature in 2016 authorized the state judiciary and the counties to begin to examine plans to achieve this goal.
In response, all the counties in the Seventh Judicial District, under the leadership of Administrative Judge Craig Doran, have considered plans for implementing this requirement which may necessitate centralized arraignments and a rotation of local judges to staff off-hours arraignments. As a supervising judge for five of these counties, I can attest to the seriousness and diligence of the local judges, law enforcement, public defenders and prosecutors as they grapple with the legal and practical problems of effectuating this complex change. I am particularly impressed with the commitment of non-lawyer judges to build a fair system that protects the constitutional rights of the defendants who appear in front of them.
Non-lawyer judges will continue to be easy targets in the debate over our justice system. There are, undeniably, episodic errors, financial malfeasance and inappropriate conduct by lay judges, just as the same difficulties face their full-time counterparts. But the facts are New York has more than 1,000 lay judges who have significant training before they take the bench, annual training thereafter, no significantly higher rate of investigations by the Judicial Conduct Commission, are disciplined at a rate less than their full-time legally educated counterparts and, perhaps most importantly, there is no significant history, widespread pattern or evidence of any actual prejudice to defendants who appear before lay judges daily.
New York’s local judges have weathered changes for more than 170 years. Based on my observations, these judges — mostly lay men and women elected by their communities and dispensing justice that has a local tone and sense of fairness — will surmount the challenges of the future.
Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice who supervises local judges in Yates, Ontario, Wayne, Seneca and Cayuga Counties. Giuliana Pietrantoni is a junior at St. John Fisher College in the political science and legal studies program.