This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Is it too much to ask that every justice court judge in Utah pass the bar exam? No, as long as there is recognition that it won't happen overnight. And if small cities and counties insist on maintaining their control at the expense of judicial quality, it may not happen at all.
Utah has two levels of courts for the vast majority of criminal and civil cases. The upper level, district courts, handle larger criminal prosecutions, including all felonies, and bigger lawsuits. All district judges are appointed by the governor and confirmed by the state Senate, and they are required by the Utah Constitution to be lawyers in good standing.
The lower level, justice courts, handle most of the Class B and C misdemeanor cases and small-claims cases (under $10,000). Their judges are appointed by mayors and county commissioners. Interestingly, the lower courts handle almost twice as many cases as the upper ones, but they have no constitutional requirement that the judges be attorneys. As a result, more than half of them (55 percent) aren't. A state legislator wants to make passing the bar a requirement, which would require changing the state constitution.
This lack of lawyer-judges hasn't come about because of a deep-seated belief that justice belongs to all people, not just attorneys. Instead, it's been a practical solution. For one thing, lawyers cost more money. The average full-time justice court judge may make only half what a district judge makes.
Another factor is that not every community has lawyers available to be judges. About two-thirds of justice court judges in Utah do it part-time. And that is because the cities and counties that appoint them don't have enough business to keep them busy full-time. As a result, we see retired farmers dispensing justice.
Those cities and counties could combine jurisdictions so that every court required a full-time judge position. Even setting aside the requirement that they be lawyers, having only full-time judges would make it easier to educate them, and they would gain judicial experience faster because they hear more cases. It's an obvious improvement to judicial quality that wouldn't require a change in the state constitution.
In fact, the Administrative Office of the Courts proposed that several years ago, but it was shot down by cities and counties that view courts as their own domains. It turns out that they don't want to share with other jurisdictions. In essence, they are willing to accept the lower quality of justice that part-timers can deliver on the grounds that it's local justice delivered by local government.
That willingness to view justice courts as fiefdoms is likely a bigger hindrance to judicial quality than allowing non-lawyers on the bench. Yes, Utah should work toward having all of its justice court judges be legally trained attorneys. The first step is to turn the ones we have into full-time professionals.