Professionalism of Judges in Basic-level Courts

Abstract

Shortly after the New Year in 1998, He Weifang published random thoughts and writings titled as “Demobilized and Transferred Soldiers Working in the Court.” He raised criticisms about the election and appointment system of Chinese judges, especially the general views of society and the government on works of courts and judges behind this practice. His basic view, as far as I see, is completely correct. That is, today’s court is already different from the courts of New China about 30 years ago (which he called a “tool of proletarian dictatorship”). Today’s court is an institutional organ with strong professionalism which settles detailed disputes (realizes judiciary/justice) according to common rules and acknowledge rules in dispute settlements . The emphasis on styles, temperament, and the strict sense of organizational discipline of soldiers has reflected that the understanding of judges and courts by society has already left behind the demands of the times and no longer accommodates the requirements of modern courts and even the development of rule of law in China. If some decision-making officials in central and local governments still insist on traditional views and pushing forward arranging demobilized and transferred soldiers to work in courts as a policy which is conducive to the establishment of rule of law, it may go against the development of specialization and professionalism of courts and judges.

In this world, things are complicated and determined by factors of many aspects…

—Mao Zedong (“About Chongqing Negotiation,” Mao Zedong Collection (one volume edition), People’s Publishing House, 1966, p. 1055).

Appendix: Magistrates and Magistrate Jurisdiction in the USA

1.1 Summary of Magistrates

(Henry J. Abraham, The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 6th ed. Oxford University Press, 1993, pp. 138–140.)

With rare exception, the lowest court at the state level—and there are those who would put the noun court into quotation marks in this particular connection—is the Justice of the Peace, originally a fourteenth-century Anglo-Saxon office. The officeholder is often, and sometimes irreverently, referred to as the “J.P.” (standing for “Justice for the Plaintiff,” in some eyes). The J.P. is also occasionally styled as squire and magistrate increasingly in many cities (e.g., New York). By no means are they necessarily a lawyer, this official is usually elected for a two- to six-year term in counties, townships, and towns, but sometimes he or she is appointed for a term of similar length by the executives in the cities. The office has an honorable and, indeed, ancient tradition that came to the colonies from England. It was initially designed to aid in the administration of justice in minor matters at the local level. Today, the Justice of the Peace, who is usually also a public notary, still performs a modicum of court work, but many of the duties are quasi-legislative, quasi-judicial, and quasi-administrative , including, characteristically, the performance of civil marriages. Most of these tasks are undertaken on a fee basis—probably a regrettable practice in view of its close link to meting out justice. The J.P. does, however, retain at least the appearance of a court of first instance in minor civil and criminal matters. In the former, the jurisdiction normally extends only to cases involving less than $300; in the latter, it is limited almost exclusively to misdemeanors.

With notable exceptions, again usually confined to some urban areas—for example, New York City, where magistrates have a legal background, are appointed for ten-year terms of office, and receive about $86,000 annually, an unusually high figure for that office, which normally commands a far lower remuneration—the Justice of the Peace’s lack of training and qualifications is exceeded only by a surefire penchant for convictions, which have averaged 96 % in civil cases and 80 % in criminal cases.⁵³ A study conducted in 1956 of a minor judiciary of North Carolina found that not a single J.P. in that state then had a law degree, that 75 % had never gone to college, and that 40 % had never even attended high school!⁵⁴ A similar study in Virginia a decade later showed that of 411 past and present members of the Association of Justices of the Peace of Virginia, a mere four were lawyers, 71 % had never gone to college, only five of the 29 % actually graduated, and 18 % were not even high school graduates .⁵⁵ In Oregon, only nine of the seventy JPs surveyed had law degrees in 1966.⁵⁶ Even in such a cosmopolitan city as Philadelphia, only six of its twenty-eight elected magistrates held a law degree in 1968. All this represents an unfortunate state of affairs, and given the suitable attributes of integrity and proper qualifications, the Justice of the Peace might well still provide able and inexpensive adjudication and settlement of minor legal problems in the judicial process. But Philadelphia’s then Chief Magistrate, Joseph J. Hersch, insisted in a 1961 interview, followed in 1968 by his successor, John Patrick Walsh, that the job of the magistrate is “more social then legal;” he decried the increasing clamor for the law degree, stating:

A law degree doesn’t make a magistrate more qualified. Living with people is more essential than going to a law library to find out what it’s all about. … If you take Purdon’s law books away from them [the lawyers], they’re out of business.⁵⁷

Yet evidence of questionable judicial qualifications based on bench behavior that have continued to surface with some consistency is not likely to stop the drive for an end of judicial staffing in the local court’s offices. However, as noted earlier, in 1976, the US Supreme Court ruled in a Kentucky case⁵⁸ that a non-lawyer jurist may preside even at a criminal trial involving possible jail sentences, at least when the defendant has an opportunity, through an appeal, to obtain a second trial before a judge who is a lawyer. In the case at issue, the lay City Judge, C.B. Russell, had not only proved himself incompetent, but outrageously so.⁵⁹ But following the US Supreme Court’s holding, a number of state supreme courts (e.g., New Hampshire, Washington, Idaho, and Florida) upheld the utilization of lay judges in sundry cases.⁶⁰ On the other hand , North Carolina enacted a statute requiring all judges to have a new degree.

1.2 Trial Courts of Jurisdiction

(Robert A. Carp and Ronald Stidham, Judicial Process in America, 4th ed., Congressional Quarterly Inc., 1998, pp. 67–68, 68–69.)

• Trial Courts of Limited Jurisdiction

Trial courts of limited jurisdiction handle the bulk of litigation in this country each year and constitute about 90 % of all courts in the USA.⁶¹ They have a variety of names: Justice of the Peace courts, magistrate courts, municipal courts, city courts, county courts, juvenile courts, domestic relations courts, and metropolitan courts, to name some of the more common ones.

The jurisdiction of these courts is limited to minor cases. In criminal matters, for example, state courts deal with three levels of violations: infractions (the least serious), misdemeanors (more serious), and felonies (the most serious). Trial courts of limited jurisdiction typically handle infractions and misdemeanors. They may impose limited fines (usually no more than $1000) and jail sentences (generally no more than one year). In civil cases, these courts are usually limited to disputes under a certain amount, such as $500. In addition, these types of courts are often limited to certain kinds of matters: traffic violations, domestic relations, or cases involving juveniles, for example. Another difference is that in many instances, these limited courts are not courts of record. Because their proceedings are not recorded, appeals of their decisions usually go to a trial court of general jurisdiction for what is known as a trial de novo (new trial).

But another outstanding feature of trial courts of limited jurisdiction is that the presiding judges are often not required to have any formal legal training. As a matter of fact , many judges are part-time amateurs who are even not familiar with the most basic legal concepts.⁶²

Those courts suffer from a serious lack of resources. Often, they have no permanent courtroom, meeting instead in grocery stores, restaurants, or private homes. Clerks are frequently not available to keep adequate records. The results are informal proceedings and the processing of cases on a mass basis. Full-fledged trials are rare, and cases are disposed of quickly.

Finally, we should note that trial courts of limited jurisdiction are used in some states to handle preliminary matters in felony criminal cases. They often hold arraignments, set bail, appoint attorneys for indigent defendants, and conduct preliminary examinations. The case is then transferred to a trial court of general jurisdiction for such matters as hearing pleas, holding trials, and sentencing.

• Trial Courts of General Jurisdiction

Most states have one set of major trial courts that handle the most serious criminal and civil cases. In addition, in many states, special categories, such as juvenile criminal offenses, domestic relations cases, and probate cases, are under the jurisdiction of trial courts of general jurisdiction.

In the majority of states, these courts also have an appellate function . They hear appeals in certain types of cases that originate in trial courts of limited jurisdiction. These appeals are often heard in a trial de novo or tried again in the court of general jurisdiction.

General trial courts are usually divided into judicial districts or circuits. Although the practice varies from state to state, the general rule is to use existing political boundaries such as a county or a group of counties in establishing the district or circuit. In rural areas, the judge may ride from one town to another within the district or circuit to hold court in different parts of the territory according to a fixed schedule. In urban areas, judges hold court in a prescribed place throughout the year. In larger counties, the group of judges may be divided according to specialization . Some may hear only civil cases; others try criminal cases exclusively.

The courts at this level have a variety of names. The most common are district, circuit, and superior. As noted earlier, Ohio and Pennsylvania still cling to the title “court of common pleas.” New York is undoubtedly the most confusing of all; its trial court of general jurisdiction is called the supreme court . The judges at this level are required by law in all states to have law degrees. These courts also maintain clerical help because they are courts of record. In other words, a degree of professionalism is evident at this level that is often lacking in the trial courts of limited jurisdiction.