1'179 104 Senate History, Sixtieth Session

S. B. 267-Committee on Judiciary. Feb. 27. ';;';"';;;'';;;:'';~s''''ummary-Tramforms jU~lices' courts 10 courts of record. (BDR 1-

1493) Fiscal Note: Effect on local Gmernment: Yes Effecl on the State or on Industrial Insurance" No.

Feb. 27-Read first timo=. Referred to Commjl1es on JudiCHH)'. To prmter.

Feb l8--From printer. To committee.

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Apr. 28-From committee: Amend, and do pass as ~mended Apr 39 Read second time. Amended. To p~lnter. I

May I From printer. To engrossment. Engrossed Firsl reprint Mat l-Read thrrd time. Passed, as amended. Title approved.

Assembly. To

May 3-10 Assembly Read first Lime. Referred 10 CommiLtee on Judj­siill~v To committee.

May 1: From committee' Amend. and do pass as amended. May 16-Taken from Second Reading File. Placed on Clm:f Clerk's

/ d~sk

Mat?4 Taken from Chief Clerk's desk Placed on Second Reading Flre. Read second time. Amended To printer.

May 2.5-From printer. To re-engrossment. Re-engrossed. reprmt." Placed on General File. Taken from General Flle. on Chief Clerk's desk.

Second Placed

Ma~ 26-Taken from Chief Clerk's desk Placed on General File. Read third time. Passed, as amended. Tille appro"ed, as amended. To Senate. In Senate

May 27-ln ·Senate. Assembly amendment not concurred in. To Assembly. In Assembly. Assembly amendment not receded from. Conference requested. First Commil1ee on Conference appointed by Assembly. To Senale. In Senate. First Committee: on Conference appointe:d by Senate. To ;::ommittee.

MaL 28-From comm1!lee:: Recede from Asse:mbly amendment First Confere:nce re:port adopted by Senate. First Conference report adopted by Assembly. To printe:r From printer. To re-engross­men!. Re-engrossed. Third reprint. ... To enrollmenl.

June 4-Enrolled and delivered to Governor. June 5-Approved by the Governor. Chapter 6.59. Effeclin January 1. 1980.

S. B. 268-Commitlee on Government Affairs, Feb. 27.

s

Summary- Requires legl~lalive counse:! to prepare memorandum coo­ceming constitulionailty of certain bllls and joint resolutions. (BDR 17-1951) Fiscal Note: Efrec[ on Local Government; No. Effeclon the Stale or on Industrial Insurance: No

Feb. 27- Read first time. Referred to Commillee on Legislative Func-tlOns. To pnnler.

Feb. 28- From printer. To committee Mar. 20-From commitlee: Amend, and do pass a,c, amended. Mar. 21-Read second lime. Amended. To printer. Mar. 22-From printe:r. To engrossment. Engrossed. First reprint. Mar. 23- Read third time. Passed, as amended. Title approved, as

amended. To Assembly. Mar. 26-ln Assemblv. Read rirsl lime. Referred 10 Committee on

Legislali,,'c Functio~s. To committee.

B. 269-Committee on Commerce and Labor, Feb. 27. Summary-Provides certain rights [0 professional e:ngineers and land

surveyors. (BDR 54-1217) Fiscal Note: Effe:ct on Local Govern­ment· No. Effect on [he Slate or on Industrial Jnsurance: No.

Feb. 27-Read firsl 11me. Referred to Committee on Judiclary. To printer.

Feb. 28-From printer. To committee.

S. B. 270

S. B. 271

S. B. 272·

S. B. 273·

Minutts of t1::e 1\'e:v:\da St.::.te Lef:isbhlre Senate CO['J.rrUttee on ....... " .. _.g.~?A_~.~~_~.Y __ .. __ .. _ ...... ___ .. _._._. Date: ______ t-!a.rch ___ 8-_, ____ 1.9_7_9 __ P;:Ige;_ ... _ .. ~ .. .. _. __ ._._ .•..•.. __ ._ ..•• _ •......• _. _

_ De meeting was called to order at 9:10 a.m. the Chair.

Senator Close was in

PRESENT= Senator Close Sena-tor Hernstadt Senator Don Ash,-lOrth Senator Dodge Senator Ford Senator Raggio Senator Sloan

ABSENT: None

SB 267 Transforms justices' courts to courts of record.

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Tom Davis, Justice of the Peace and Municipal Judge of Carson City, appearing on behalf of the Judges Association. He stated that they are in support of this bill, but they \vould like some clarification. He felt that there could be a real problem if NRS 189.050 were repealed, as that would eliminate the trial de novo in criminal cases. As long as a lawyer judge was available to a defendaJ"lt the non-lawyer judge could exist. This came out of a United Stated Supreme Court decision in the case of North vs. Russell (see Attach­ment A) .

Senator Dodge stated_he has talked to Frank Daykin about this and Mr. Daykin stated that he doesn't feel that it renders what we are trying to do here.

Judge Davis stated that he is satisfied, but the question did arise and so he is pointing it out. He also brought out the fact that the municipal courts have not been written into this section and he felt that they should be includea. He also has a question in Section 7. This section is an either/or situation with the court reporter and the sound equipment. Is this intended?

Senator Ashworth stated this was done because in -the small counties they don't have a stenographer.

Judge Davis asked if the courts could be prepared, expense­wise, to provide these services by January 1, 1980.

Senator Hernstadt stated this expense would only be around $1,200. These machines are similar to \,-ha t is being used in the Legislature. They run 4 tracks so that you can have a speaker in front of the Judge, the witness, and each of the attorneys.

Senator Ashworth stated that the recordings would not be trans­cribed unless there was an appeal.

(Conmlltee !'tJjnule~)

s. B. 267

SENATE BILL NO. 267--COMMITTEE ON JUDICIARY

FEBRUARY 27,1979

• Referred to Committee on Judiciary

SUMMARY-Transforms justices' courts to courts of record. (BDR 1-1493) FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: No.

Exl'LANAnON-Matter iD italics is new; matter m bracket~ [ ] is material to be: omitted.

AN ACT relating to justices' courts; transfonning them to courts of record; and providing other matters properly relating thereto.

The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:

1 SECTION I. Chapter 1 of NRS is hereby amended by adding thereto 2 the provisions set forth as sections 2 to 7. inclusive, of this act. a SEC. 2. 1. The judge of any district court and the justice of the peace 4, of any justice's court may appoint one certified shorthand reporter, to 5 be known as the official reporter of lheir court, and to hold office during 6 the pleasure of the judge or justice ot the peace appointing him. 7 2. The official reporter shall, at the request of either party or of the 8 court in a civil action, and on the order of the court, the district attorney 9 or the attorney for the defendant in a criminal action, take down in short-

r--_ 10 hand all the testimony, the objections made, the rulings at the court, the 11 exceptions taken, all arralgnments, pleas and sentences at defendants in 12 criminal cases, all statements and remarks made by the district attorney 13 or judge, and all oral instructions given by the judge. If the court reporter 14 is directed by the court or requested by either party, he shall, within a 15 reasonable time after the trial of the case or as may be designated by the 16 court, reproduce the record or those portions of the record which have 17 been requested and certify it as being correctly reported and transcribed, 18 - and, when direct~d by the law or court, file it with the clerk at the courl. 19S1lc.3. The official reporter of any district court or justice's court 20 shall altend to the duties of his office in person except when excused for 21 good reason by order of the court. Any order excusing the official 22 reporter must be entered in the minutes of the court. Employment in his 23 professional capacity elsewhere is not a good reason for which a court 24 order excusing his absence may be issued. When the official reporter ot 25 any court has been excused in the manner provided in this section, the

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1 court may designate an official reporter pro tempore who shall perform 2 the same duties and receive the same cornpensation during the term at 3 his employment as the official reporter. 4 SEC. 4. The official reporter of any court, or official reporter pro 5 tempore, shall, before entering upon the duties of his office, take and 6 subscribe the constitu,tional oath of office. 7 SEC. 5. The report of the official reporter, Or official reporter pro 8 tempore, of any court, when transcriked and certified as a correct tran-9 script oj the testimony and proceedings in the case, is prima facie

10 evidence of the testimony and proceedings. 11 • SEC. 6. 1. For his services, the official reporter or reporter pro 12 tempore is entitled to receive, the following fees: 13 (a) For being available to report civil and criminal testimony and 14 proceedings when the court is sitting, $50 per day, to be paid by the 15 county as provided in subsection 2. 16 (b) For transcription, 70 cents per. folio for the original draft, and 17 20 cents per folio for each additional copy to the party ordering the 18 original draft. For transcription for any party other than the party 19, o.rdering the original draft, 20 cents per folio. 20 (c) For reporting civil malters, in addition to the salary provided in 21 paragraph (a), $8 for each hour or fraction thereof actually spent, but 22· .not more ,than $50 in any calendar day, to be taxed as co.ts pwsuant 23 to subsection 3. If the fees for any day computed according to the hourly 24 rate would otherwise exceed $50, the fee to be taxed for each civil matter 25 . reported is that proportion of $50 which the time spent on that matter 26 bore to the total time spent that day. 27 2. The fee specified in paragraph (a) of subsection 1 must be paid 2B out of the county treasury upon the order of the court. In criminal cases 29 the fees for transcripts ordered by the court must be paid out of the 30 county treasury upon the order of the court. When there is no official 3f, 'reporter in attendance and a reporter pro tempore is appointed, his 32 reasonable expenses for traveling and detention must be fixed and paid 33 ,by the court in a like manner. The r,espective district judges and justices 34 of the peace may, with the approval of the respective board or boards of 35 county commissioners within the judicial district or township, as the 3&"case may be, fix a monthly salary to be. paid to the official reporter in 37 lieu o/per diem. In cases where the official reporter works in more than 38· . one County, the salary and actual traveling expenses must be prorated 39 byJhe iudgeon the basis 'Of time spent at work in the respective cOllnties. 40 ..The· MlaTY and traveling expenses must be paid out of the respective 41',' county. treasuries upon the order of the court .. 42, 3; In civil cases the fees prescribed in paragraph (c) of subsection 1 43' om'J.for transcripts ordered by the court must be paid by the parties in 44.', 'equnJ. proportions, and either party. may, at his option, pay the whole 46 ,.thereof . .In either case all amounts paid by the party to whom costs are ~, 'ilwtuded must· be taxed as costs in the case. The fees for transcripts and 4T" 'copills must be. paid by the party ordering them. No reporter may be 48. requireii to perform any service in a civil case, until hi" fees have been 49" deposited with the .. clerk of the court: . '. ' 50 4. If a transcript is ordered by the court or any party, the fees for it

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1 must be paid to the clerk of the court and the. clerk must pay them to 2 the reporter when he furnishes the transcript. 3 5. The testimony and proceedings in an uncontested divorce action 4 need not be transcribed unless requested by a party or ordered by the 5 court. 6 SEC. 7. 1. A district judge and a. justice of the peace, with the 7 approval of the board of county commissioners of anyone or more of 8 the corm ties comprising the district or of the county in which the justice's 9 court is held, may, in addition to the appointment of a court reporter as

1(') provided in section 2 of this acr, order the installation of sound recording 11 equipment tor recording civil and criminal proceedings or special pro-12 ceedings which are recorded by the official reporter, a special reporter 13 or any reporter pro tempore appointed by the court. 14 2. To operate the sound recording equipment, the judge or justice 15 of the peace may appoint the official reporter or a special reporter or 16 reporter pro tempore or the county clerk or clerk of the court or deputy 17 clerk. The person operating the sound recording equipment shall sub-18 scribe to an oath that he will operate it so as to record all of the pro-19 ceedings. 20 3. The court may also designate the person to transcribe the record-21 ing into a written transcript. The person transcribing the recording shall 22 subscribe to an oath that he has correctly transcribed it. 23 4. The transcript may be used for all purposes for which transcripts 24 aTe used and is subject to correction in the same manner Q8 other tran-25 scripts. 26 SEC. 8. NRS 1.020 is hereby amended to read as follows: 27 1.020 The supreme court, the [several] district courts, the justices' 28 cour·ts and [such] other courts [as] the legislature [shall designate, 29 shall be] designates are courts of record. 30 SEC. 9. NRS 171.198 is hereby amended to read as follows: 31 171.198 1. The magistrate shall employ a certified shorthand 32 reporter to take down all the testimony and the proceedings on the hear-33 ing or examination, and within such time as the court may designate have 34 [such] that testimony and proceedings transcribed into typewritten 35 transcript. 36 2. The reporter employed as provided in subsection 1 shall be sworn 37 by the magistrate before whom [such] those proceedings are held to 38 record verbatim, truthfully and correctly [such] the proceedings and 39 testimony, and to make a true and correct transcript thereof into type-40 written transcript. 41 3. When the testimony of each witness is all taken and transcribed by 42 the reporter, the reporter shall certify to the transcript in the same man-43 ner as for a transcript of testimony in the district court, which certificate 44 [shall authenticate] authenticates the transcript for all purposes of this 45 Title. 46 4. [Prior to] Before the date set for trial, either party may move the 47 court before which the case is pending to add to, delete from, or other-48 wise correct the transcript to conform with the testimony as given and to 49 settle the transcript so altered.

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1 5., The compensation for the services of a reporter employed as pro-2 vided in this section shall be the same as provided in subsection I of 3 [NRS 3.370,]. section 6 of this aCt, to be paid out qf the county treasury 4 as other claims against the county are allowed and paid. 5 6. Testimony reduced to writing and authenticated according to the 6 provisions of this section must be filed by the examining magistrate with 7 the clerk of the district court of his county, and in case the prisoner is S subsequently examined upon a writ of habeas corpus, [such] the testi-9 many must be considered as given before [such] that judge or court. A

10 copy of the transcript [shall] must be furnished without charge to the 11 defendant and to the district attorney, 12 7. The testimony so taken may be used: 13 (a) By the defendant; or 14 (h) By the state if the defendant was represented by counselor 15 affirmatively waived his right to counsel, 16 upon the trial of the cause, and in all proceedings therein, when the 17 witness is sick, out of the state, dead, or when his personal attendance 18 cannot be had in court. 19 SEC. 10. Chapter 189 of NRS is hereby amended by adding thereto 20 a new section which shall read as follows: 21 1. Except as provided in subsection 2, if the transcript of a case 22 appealed to the district court is defective in any way, the matter must 23 be returned for retrial in the justice's court from which it came. 24 2. If all parties to the appeal stipulate to being bound by a particular 25 transcript of the proceedings ill the justice's court, an appeal based on 26 that transcript may be heard by the district courl without regard to any 27 defects in the transcript. 28 SEC. 11. NRS 189.030 is herehy amended to read as follows: 29 189.030 1. The justice [must,] shall, within 10 days after the 30 notice bf appeal is filed, transmit to the clerk of the district court the 31 transcript of the case, all other papers relating to the case and a certified 32 copy of his docket. 33 2. The justice shall give notice to the appellant or his attorney that 34 [all such papers] the transcript and all other papers relating to the case 35 have been filed with the clerk of the district court. 36 SEC. 12. NRS 189.050 is hereby amended to read as follows: 37 189.050 An appeal duly perfected transfers the action to the district 38 court for trial [anew.] on the record. 39 SEC. 13. NRS 656.290 is hereby amended to read as follows: 40 656.290 1. The board may subpena and bring before it any person 41 in this state and take testimony either orally or by deposition, [or both,] 42 with the same fees and mileage and in the same manner as prescribed in 43 civil cases in courts of this state. 44 2. Any member of the board may administer oaths to witnesses at 45 any hearing which the board is authorized by law to conduct, and any 46 other oaths required or authorized in this chapter. 47 3. Any district court, npon the application of the accused or com-48 plainant or of the board may, by order duly entered, require the attend-49 ance of witnesses and the production of relevant books and papers before 50 the board in any hearing relative to the application for or refusal, recall,

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1 suspension or revocation of a certificate, and the court may compel 2 obedience to its order by proceedings for contempt. 3 4. The board, at its expense, shall provide a shorthand reporter to 4 transcribe the testimony and preserve a record of all proceedings at the 5 hearing of any case wherein a certificate is revoked or suspended. The 6 notice of bearing, complaint and all other documents in the nature of 7 pleadings and written motions filed in the proceedings, the transcript of 8 testimony, the report of the hoard and its orders [shall be] are the rec-9 ord of [such] the proceedings. The hoard shall furnish a transcript of

10 [such] that record to any person interested in [such] the hearing upon 11 payment [therefor] of the statutory fees for transcription as provided in 12 [NRS 3.370.] section 6 of this act. 13 5. At any time after the suspension or revocation of any certificate, 14 the board may restore it to the accused without examination upon un ani-15 mous vote by the board. 16 SEC. 14. NRS 3.320 to 3.380, inclusive, 189.040 and 189.080 are 17 hereby repealed. 18 SEC. 15. This act shall become effective on January 1, 1980.

Minntes of the 'N"~v2ua Sl;].,e Legishture Sen3te Committee on __________________ J_udiciar.y _____ . __________________________________ .. ________ . ___ ._ .. _. _________________ . ______________ . ___ .. ______ _ Date:_ .. _.J\_<;iJ"_~_h .. __ a_,. .... J_9..7.9 __ _ Page: ..... .2 ...... _ ............ -... -.... __ ......... -

Senator Raggio stated he could see a problem with the bill as the Ylay it is drafted it requires a certified shorthand reporter. Under Section 7 it states "\"Ii th the approval of the County Co~missioners, either the District Court or the Justice Court, may in addition to a court reporter, order the installation of recording equipment."

Senator Dodge stated that the bill is incorrectly drafted. The thrust of 'che bill \-Jas to give the courts the option.

Judge Davis stated that he thought the concept of the bill Ylas a·good one and Ylas one step further in turning the court professional.

Terry Reynolds, Administrative Planner Ylith the Office of the Courts stated he would like to touch on tYlO cases Ylhich might be of interest to the committee. Fir st \-JaS the one mentioned by Judge Davis the second \'1as Treiman vs. the State of Florida (see Attachment B). He stated he Ylould first like to point out that Nevada is like the North vs. Russell case, in that it has a two~tiered court system. That is a person being tried in a Justice Court or Hunicipal Court has the right of appeal for a new trial in District Court.

Senator Ash',;orth asked 11r. Reynolds if he was a\oJare there was legislation_pending to do away with the tHo-tiered system.

Mr. Reynolds stated he was. The question is,if you took aHay the tvlO tiered system, if the judge \'1as not an attorney, would the trial be constitutional. Under the Florida case, the State's Supreme Court decided that because they had their non-attorney judges attend a special training course, that it was constitutional because they did have legal training through a special session.

Senator Close asked if there Has an appeal de novo available.

Mr. Reynolds stated there wasn't.

Senator Close asked if our state's Jusitces' of the Peace courts had the same type of training available to them.

Mr. Reynolds stated that they do_ This state's non-attorney judges attend a b'lo-\\'eek session and tha-t session is in the process of being up-graded.

Senator Raggio stated that he thought it ylaS mandatory_

Mr. Reynolds stated that it was, but there are some exten­uating circumstances that can keep a judge from it.

Sena tor Close asked if this \,'as b.;o weeks every year, or two \-leeks during their term. 5(.:5

(Commjtt.,e :-'Jinutts)

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MiOl!ks of Ih;: Nevada Stat:;:. Lcg.1siature

Sco:lte Committee on._ .......... ~Il}.sJ?-.~.:1.?-J;.y .... __ ."._ .... "_ ... _". . ........................... ,._ ....... __ ... _-.--_ .. _ .... _ ..... - ...... _-----_._------

D at e: ...... 1:1.": :r:<::11.. .. 8.L..1~. 7..~ .. Page: ....... ;3 ........................................ .

Hr. Reynolds stated that this is tuo weeks at the begining of their term. However, they can voluntarialy attend other sessions.

Ed Psaltis, Hith the Administrative Office of the Courts, stated that the operation that has been in effect was that as soon as a .. new judge is elected or appointed, He try to get them into the first tHo-I'leek course available. 1':e, have also been having, over the past 5 years, 2 to 3 day sessions .. , approximately tt-lice a year for the judges, to. bring them current, as to what is going on in the state and vlhat .. is happening outside. We also encourage them to take courses at the National Judicial College. These courses run about a week and cover such things as evidence, sentencing, search and seizure and many others. The response has been good. He stated that when the Committee looked over the Florida case, they should check over the course titles. They could be compared ,vith ,,'hat is being done at the Judicial College. So he felt that the Florida case could be used as a precedent­setting case.

Sam Hamet, representing Clark CountY,stated he had one concern and that \Vas on Page 1, Line 10, where it stated "to take down in shorthand." He \Vanted to make sure that this language would cover stenotype.

Senator Ford stated that these people are now certified but she is not sure \Vhat their official title is.

Senator Close stated they are certified Court Reporters.

Senator Raggio stated that this terminology is defined in the la\V and includes stenotype and shorthand.

Mr. Mamet stated that on Page 2, Line 13, Section 6, there is a question about the setting forth of the compensation of the reporters. He stated he has a problem ,vi th the phrase, "being available." Does that mean if you just \Valk in the door you are available? He felt it should be tightened up so that it is clear that it is $50 a day "hen they actually do vlhatever it is the reporter does.

Senator Dodge sta·ted he thought that \'las in the laH nOH. What this means is, if the reporter is ordered, their time is actually guaranteed.

Senator AshHorth stated he was unclear on ",ho had the option to have it taken down in shorthand.

Senator Close stated that that point had not been decided yet. The problem is that it appears this was lifted out from the statute on the District Courts. He pointed out that this ,vas apparent because on Page 3, Lines 3 toru 5, it talks about SC.(} uncontested divorce proceedings.

Minntes of the- ~ev::::II~3. S:ate Legislature S::nate Com:nitt1!'e on- .. _ .. _._ .... y..y.Q.tQ.~.9:;r;y_ ..... _ .. _ ...... _ ....... _ . ____ ._ ....... ____ ... _ .... _______ .. __ ._ .. ______ .... ___ ... __ . ___ ._._ ... ____ ... ___ ._._ D3te: _____ !1_i'L_:r:_c:_0 _____ 8'--__ )--9._}_~ __ Page: _______ ~ _____________________________________ •

Senator Raggio brought out the fact that on the first page of the bill it talks about both district and justice's courts.

Senator Close stated that he thought they should take a closer look at the bill to see what the drafter had done wi th it. Be stated he certainly didn't ,.;ant the two courts merged.

Senator Raggio stated that they had been kept separate before, but if we are going to allow the same thing in both courts, they could go in together in the general Statute on the courts.

Senator Close stated, except we are now talking about going more into the electronic recording.

Senator Raggio stated that he felt it could be made optional in the justice court operation without making it optional in the district courts.

Senator Close s-ta ted there is also a problem on Page 2, Section 1. It would not be my intent to permit the J.P. Courts to have each Justice of the Peace appoint one short~ hand reporter.

Senator Sloan stated that there has to be a shorthand reporter for any preliminary hearing. Be felt that most of the J.P.'s had appointed a shorthand reporter already.

Senator Bernstadt pointed tape it states "defective be tightened up to say in those lines.

out that when in any "I.-lay a 11

a substantive

it talks about the He felt that should way or something along

Senator Close stated he wanted to make sure it was understood that you could have recording devices in the J.P. Courts and that it would be up to the County cOllllilissioners to appoint the court reporter.

Senator Dodge agreed that was the way it should be structured. Be felt that if the three-tier system ",as developed there should be more stature in the J.P. Courts.

Senator Raggio stated-he would like to see what happens with this in justice courts for two years before extending it to the municipal courts. He felt problems could arise that no one has thought of yet and they could get in too deep.

Senator Close stated that he felt that if either of the parties wanted a court reporter they should pay for their ovm.

(CommIHf'f! J\.!lnol~)

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Senator Sloan felt there could be a problem ''lith this. First thing you would have would be the public defender asking for a reporter and expecting the public to pay for it.

Senator Close stated that is the way it is now. The only difference is now they are always available because the county co*~issioners have them over there.

Senator Sloan stated that they are not available in mis­demeanors. He doesn't feel the public defender should be in a better position than the average misdemeanent.

Senator Raggio stated he agrees. One way or the other it is going to be a court of record. It is that way right nm" in district court, so why do something different in the Im-ler courts.

Bill Hacdonald,. Humboldt County District Attorney, stated that they have a 4-track recorder and frequently use it, >,hen there is a brief matter in district court and the parties agree. We will then have a court clerk transcribe it later.

Senator Close asked if it is difficult to transcribe the proceedings accurately with one of these types of machines Vlhen it is in a court room.

Nr. Macdonald stated that his people find it great. The judge, the Vlitness, the counsels are all on a separate track. If they are all talking at one time then you put it on one track and transcribe that and then back it up and take off the second track, and so on. They find it \vorks \vell as in his office there are tVlO prosecutors and two courts. Frequently there are two trials running-at the same time. So we use the court reporter in the District Court and the recorder in the Justice Court. The only problem Vie have is \-lith the public defender's office, they say we cannot do that. They say the law doesn't give us that authority.

Senator Raggio stated that only the lmver courts were going to have the option, did he mean to have the District Court have it too?

Nr. Nacdona;ld( stated he thought it \-iOuld be a good idea. Especially I.;hen you had as-minute arraingment and a day long preliminary across the hall. You have to wait until there is a recess in the preliminary hearing, the court reporter picks up his machine, runs across the hall, the prisoner is brought up, the District Judge is anxious to get out of tmm because he has more than one county to cover, and it is an inconvenience all the way around.

Senator Close stated that he would like to bring out the fact that this type of legislation is the practice in all the courts in Alaska.

Mic.utes oE Ibe Ne\'3ch State Legishtcre

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Senator Close stated he \'lould talk all these things over with Hr. Daykin and either get an amendment or a neH ·bill, Hhich­ever was more convenient.

AB 168 Prohibits discharge of firearm at structures and vehicles.

See minutes of March 7 for testimony, discussion and action.

Senator Close stated he had not had all the changes marked down that they \vished to make. He stated that he had 6 years marked do\-m to conform it, and ''las there anything else.

Bill Mac Donald, Humboldt County District Attorney" stated he Has not here for yesterday's testimony, and Hould like to make a statement; even though the bill had been passed. He felt there vias a problem 'vith the \Yording "abandoned." He stated they \Yould take that \Yording to get the bill, but he thought that Hould add a problem to their enforcing. They had a problem in Winnemucca do\Yn in the jungle by the railroad tracks. Some guy Has intentionally shooting into Hhat appeared to be an abando!".ed tin shack. He apparently didn' t see the smoke coming up from the guy inside cooking his beans. A bullet \Vent through the shack and killed the guy inside. NOlv the question arises, is this really abandoned?

SB 143 Requires interpreters for certain handicapped persons in judicial and administrative proceedings.

See minutes of February 6, 13 and 14 for testimony and discussion.

Senator Close stated that he had a letter from the Legisla­tive Counsel Bureau, in answer to I1s. Hensley's testimony. Andy Gross stated in the letter that there is no\Yhere in Federal LaH that a mandate exists. He also read the changes that are to be made in the bill. On line 16 through end of line 18 delete. On line 20 change language to read "and serve as an interpreter as defined under NRS 171.1535." On Page 2, Section 2 take out line one and tHO up to "if appointed interpreter." All this Hill be qualified by section 3. We \-Till then make sure the wording is right so that it cannot be the spouse as interpreter, unless so appointed by the court.

After some discussion the Committee agreed to have this brought back after the amendments were drafted to make sure this Hhat they wanted, before taking action.

(See attachment C for letter from Legislative Counsel Bureau)

(CommiLtee ~1inutM:)

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328 . OCTOIlERTERM, 1975:: • ,. • !

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;\ '!, 427 U. So'

NORTlIv.O)WSSEr,L 'J:T ~L.

API'EAL !T.OM counT OF Al'PEAIJ3 OF KEKTUCh.Y . '.'

No. "j-l10'J. Argued DoCO[nbcr~, 197G-Dccidod June 2S, 1970

Under l(cntucky's two-tier court system, police courl., (the fiITt tic-r) hn.\'C jmi..,Jictirm or rnisdeITl(~nQr C'115ei, [''1t :1.11 (lCC\l5~rl b;1.,'1 ~n !\rlW~d of ri~h~ frOln :1 vo1icI? itlcl~("" dcci:;ion to the circuit. court ([,he ~C'{:ond t\r;r) ) where thrrC' is 1'1, tri:d de 110t'U, The Stn!\! Con::llIulion rcquirC'~ ('\ti~ in J\:m\l1rkr to hI" ['L'\...~"incO :1('­

('onlin~ to popllhtioJ). ~il(' By sbtlltc jucl~(',~ r)f police C011rt;: ill

cities of j(,!;s thf\.n r. ccrt:lin IJOPul:> .. lion n\'(~d not. be In w)'t'rs , LllL in br~er riliC'i they must. be', and nll cirr;uit rourt judges nrc b.w),crs, In this ch~llcll~r: to the con.slilutionnlily or the !:t:1.tu­tory !';chcmC' held:

1. All :,\C'cu:::c-.:l, 1\'110 is rh:\Ti;Cc1 with n. mi:::drmcanor {or which be 15 1';ul)JC'ct to p0"-Si\J1L' imprisonrnC'nt, is not derlicd du~ pro(;(':'1.::; \\,h'.'11 1ri(,j bciorc l. nonb\\)'~r police court judp;c In one of the smnllC'i rilie;, whrn 1\ later trbl (/(' novo \.., :\vrtilnb\~ in the' circuit COllrl,

Word v, Vt'/io(Jc oJ .lionrort'ille, 4fYJ 'l~. S, j7; TII.17IcV v, Ohio, 273 1:, S. ;:;10. di"iti.Jl~l!-;llL'(i, 1'p, ;';,'::3-8::>9,

2 :\'or doe'S the' Sh!.'! (;l:ll:-' such .'\11 :I('('I\:::C<1 uttl,,1 protc ...... lion ur tile 1:W';~ by pro\'irltnc; 1.'\',I'-I,r,li!ll<{l iud~{o;.; rvr ,::0111(' 1)01\,,(' t'O\J)'tS

:1.!1d h~' jlltir,c,;,; [,"'If other::, d"I)l'llCiinj: upon tloc ,~t\\t~ C{lll."ilillltio;I','i l'bp:;i:i(';,lio11 ,A ei\ll\, .\("('ording: to p0]1lilnti(lll. ;-:inr'{' :'o.C: \0111.( i\', ~ll

j.'\'\,'plr ;\'itl1il1 (':\.rh cl~$\!il.:'d nrC'~ (He' tfC','ltt,cl N;I,;.1.11y, the diITrrt'nt cb~in(,,'lliol:'<:: \\'iL!lill til'_' C'('1urt, ~y.st.cm :Irt~ jl.1.:;linl!d, "Ji.~MItJr! \'.

I.eu·Is, 101 1I. S, n i'1'. :3.,3-330,

A.fjinn~,d,

11\..'11(11':11, C, J.) drlin'rr-:.l t11[, (li~inioll I)i [lie CO\lrt. in whirh '\'}{!TE,

1h, .. \o::-'Pl:">1, l\~\\'.t:\'lJ, ,'1l1d I~rl\~{iLTt"1', ,LI, J{)i1\(~l. DIU::-;:-:,\;--", .T., concurrcd in the fC3lJ!t, '::':'T!-:\\·,I,.H1, J" fikd 1\ dil.';,~l'111illJ; oplni{]!l) in which :\IAIISILQ.L, J .. joineu, JJr!"L! p. Tm, Bn:Yl::;-';-s, J,! took )10 P!I.rt. in the cOll.o.;ider<ltion or dcci,"'ion oi the c:\..<,c.

CI,arlos E, Ooss "r~l1ed ,he r:\l1'r. 1111(1 G1l,,1 bricLi for nppclbll&.

Robert I,. O"C7I (111'0(." , i\.",istolll At.lul'llcy Gellcr"l of

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r::.:::'~:'\'" : 328 . Opinion of the C<>url' . "':"'" , .' ,.

',:.~.'.':,},:.;,~,: .• _ .. :.';.' .• ' ;;~'~;~;~::~";,~ ~:; ~;::;::;,"Xit~S;'~~;~9":; . ,...: - ":"';'In, .CmEF· JUSTICE BUHG£H. dclivercd_.tb~ ·opinion"of. .. ,."

;~~:~.~~' 'the Court,. '", '. . . j' '; ~ ''-:., ~ ...

I~~.~;~;·,' The quest.ion precentccl in this ease is whethrr ltn ltC-

f'"'' . cU8ed, subjcct to pos.,ible imprisonment.," is· denied due l·:~<"·.-·· process whnn tried before a nonl[CTI'}'cr police courl' >

e~·:;~·· judge "'it.h n. bter tri,c\ de )I0VO [l.vr.ilnble under r. St.n.t~'s ! .. '.. tWQ-t.icr court syst"m; n.nd whether [l f)t[l.t~ denies equnl

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prnkc,ion by pruviciill/< In.w-trninrd jud,;r" for some police courls and by judg',s fol' olhel1', depending upon the St"tc Constitution's clnssiGcrd·ion of citics "ccording to popul[ltion.

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Appclhnl L()nnie ;:"'01t1l \\'3.'i Drrcst",d in Lynch. 1\)'., on July 10.1974, r.nd nhal';:crl with ciriving ,,·hile intoxi­('r.t<eel in "iohlion of Ky. Rcv. S(".(. :\n1\. § 1E'0.520 12) (l(J71). If 11 rll'st ul1'onse. [1 pcn[].I&,- of [].l1nc of 11'0111,3100

(0 .s,~,OO is provided; ii " sub"cqllcnl. oITl'11~['. (he ",'\J11C

1mC', :llIc1 imprisonment fur jlot, morr than sl:\ )11011ths,1

Ky. Re\,. Stn(. ,\n11. S 1:30,900 (lO) (n,) (1\)71).

·Hrici~; of arlll,:i tll1'in(" un:lll!:; rCH'r::::11 wcn' fii"d [,1:-' Allen" ..-1~·h­m/17\ iClf the Amcn~';t.n ,J\ltli(':\tl1r'~ So'~i~ty: hy NI'''(' If, Ul'uGch! h" [or ~h('. Pctit.ion(:r:o: awl Cl:\;:::.(:,>,,: til' Pcutil')l\('r .. \n H'y,H' \', l!~,}l/;i)I,~ !U1d ill J~anrht'l Y. Tonkin .. IIIH.1 b;: J.JOlll)hlln ,1!cf)!)nl!,IJ,

Ur.lj McCloin l Ncil Brolllr,ll, ;\\Hl Mdt'il! L, H'ulJ for the .'\:m:riC:lJl CiYll Liberties Union FOUI;d:1110Jl, 1nr.: h,\' L\i,':'t C. II"hllmN fur (ll\,' l{C'll\uckv 13:,r A~:3n ; h\' IU (J)'"ll(;il J. Jlur~'''!(irl, Joupn T. G,~rI(Jv.sk¥! :lnll "j(!1!lCS p, ""lit)' for (hr: \'{\tio!l:l! T).'~:ll .\\d .'In.n D..'klJ!.\N l\~~n.; and by )11111 .Hit .. qIllJlI}O for tbe S:11L L!\.kc ~n.l Dcicn lief'S ,\.~"n,

l:,'t1(JI!r!c W. SnriJbury! DU!1tc:.Il S. ;If a.cAJJu! .:loc! LOWfl;1ll;( :t, Schtdz med n. l.;rid i\H tJ1C :K.cw York S\\l.tc A~ocil~tion of ~br;is. t,r:1.t.('1) n..s amicw C1ll1,1(' llq!int: .'1-f!irm.1)H'(',

\. Tb~ o!lcnsc new (,:1rriC';' the- :":.'\IlIC l!10ilcl.'H), Ii:l(l f,chcduk, bu~ n ~('cond Clffcn.::ia 00\'/ r('qUlrc'~ ltnpn.l::olll1lt'nt ior nut l~ th:1.n ~hITC

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to

Opinion of lh~ Court 427U.B.

Appcllnnt's trird 1\'~s &chcdulcd for July IS, 1074, nt. I p. m., before the Lynch Cit.y !'olice Court,. A)lJlellee C. n, llusselL who i~ not a lawyer, was I,he presiding judge. Appellnnt's request for n jUr\' wa.s denied al. though under Kentucky law he \I'~' ~Ilt,it.lcri to n jun' trinL Ky. Conse. ~ II; Ky. Ro,·. Sl~t. ,\ 11n. H :!5.·0]4. :?G.4I)() (ID7l). ilppclll\llt piC'ndc.d not g-uill)'. AJlJlcl~ Inlll was [oulld ,,\lilty anrl ~nt{,llcrd to ~O ti~", ill jail. [L nne of ,3],50. alld rc,"oeat·ioll of hi, dri"pr's li(,(,II'o.

5ectioll ISO of (,he I\('lltlJc.k,· C'on,titutioll requircs cities to bo cl~ssilieri ~ccorcJln)1 to popuintion ,SilO. There nrc six ch"ses of cltir:s: fifth·cla,:s cities ha"r " 1"'I'ulalion of. bcl\lTell 1,000 alld 3.00(1: sixt.h·r:lnss cil.irs II\IVC n pOjJulation or l('ss thal1 1,000. Lynch is a lift,h·rlass city. 1\),. Eo\'. ,C;tat·. AI1I1, :j Sl.OJ(J I.) I (Inn). A police judge ill Mtll. awl sixth·da.5.s ('ili('.' must I)), stntlll{' be n ','oter ~nd r~sirlr.nl of lhc' cit\' rur tit, Ie""t ('110. ,'cal' tlnd 111' honderl. 1\.,', ]jr\·. :Clnt,. :\nl'. ~ ~().200 ( ]f);]): the policC' jurl~(' ill 'liCit citil's 11('1'<1 l)(iI, ill' n inll,},r'r. Police ,iurl~l" ill lir'l·cln.~, cili('" \I·hi,,11 11:,,·(, popuht.iol1s "f OHr IOG.uno. 11\(1,1, ita\'c 1·110 .':lilll' (j\l:t!i(irnlinn.':': :lS [I rirrllit tllrllU'. l,\'hn mu:-'t Ill' at. !":l.:.t

::;:1 .\''':1:''':; (If :ll!I', n rJ[,i%CJl or I\('lit1lcJ\y. :l t·\\·(!~,\'(l:\l' l'(':-:i~ d"lll oi lit,' di.ql'i,'l. alld [\ I'I'[\r'li('illl! ((1·[rll·II['\· for ridll ,·I'llr'.' 1\)'. CUD,!. ~ lao; EO', He\·. :'itnt· ... I nil. ~ ~G. 1+0 (10,1), Police rOlll't judge, htll'>' l<:nns of four ~·(,"I's.

(hr·~ :111(! not fj)rHr. !h:'.tJ ,eix rnr)lllh~; ~111~' .~uh..::('qll(,llll)rrCll~C rcquir~~ irnpri::0n rllrnt [III' nDt if,':'..';; lJ1.1n ,1(1 {h:.~ "IV] !lot III{Jtr th:ln 12 mO:1!/ls. I(~·. Rr\', Stilt, .\1111, ~ J:\~lr~h'l rr1ilal (Rllpp. 197-1).

~ .'\ ~:(,r.'l\!!d-cl:1~';: cily (poplllrdio!l ::O,nf~)-Joo,r)(J()) polin' jnd~t, nnL-:t bt, a~ j(':L..:.t '2,\ :1 rt.' . .:.irjrnL iJf till' l,j(,\' fur fOllr ,\"{:~lrs, :lnd ~ln aLtum,,), :l.L ltl.\\', lC~', HL'\', ,:':1.,:11" AnJ!, § '.:!1l,I:",U (:-iUf11' Hli·~). .-\ lh!rd~{'l.l.~" (')I)' (Pr'1I!1!l:lliol1 ,,",,()(x)-:!O,\H.)l.J) 'nnd :~ f(lUrl)H"I:l~ rirr (l'<JrHJ:~II(\n :'::,OOO--,s,('()(J) pollet JuuJ!(, 1Il!t~1 be %Lt. kfl.:SL 2·1 :ul(J il

city rr~idcnt., Ky, Hc\', Sl:1.t. Ann. § 2r.1.100 (Ern J.

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NORTH v. R l'SSELL 331

32S Opinion or the Court

In fourth., fiff.h., or si.~t,h·cl[\.'-S cit.ies police jud,;c., may be eit.her nppointcri or ('\cct<:cJ.' Ky. C'-on,t. § 160,

Police courts h,~vc jurisdiction, concurrent with cir. cuit court,s, of penni n.nri misdemo:lnor cn.S('S runishn.bl~

bv 1\ UnO of not mora thnn 5500 und/or i1l1prironmcnt of not morc tli11l\ I~ ilion tho. Ky. llev. St,at, Ann. § 25,010 (1871). Ii:entuckj.· lIns n two·tier misdrnlcunor court system. An nppcnl of rig-ht is provided from the dcci,ion of a police judge t{) Lllc circuit rourt wherc' nil judges uc bwvcrs, and in that court a jury trial de novo mn:, be h~d. Ky, 11.('\'. Stat. ,\nll. § 23.032 (HJ7]); EO'. Dule Crim, l'r8C. J 2.(lli.

Appellant, did I\ot, apl)rnl tD t·he E,'nt.llcky cirCUit eOl.lrt for a (.ri:ll de novo (() witirl! he II'n.' rlltit,leci. .Ifter ocin!; ccnt~nccd by tlj>pclll'e jucigr, nppelbnt chnllenged l,ile st,tltutar), SChClllC dl',cribed above !J.I· I'. ,wit. of habea, corpus in the Harlan Coullty Circuit Court, where hc was

~ The Cl'IlNJl .. \<;.~l'mhl;: 011/1(' COmnlOll\\'C':1.!1 h u[ l\1'~ll,\Jd.;)' :'It ir~

Eli·1 ~('S'.:.iOll, b\' :SCll~dC' Bdl J,~:::3, ('I1.:1I'll'd :111 ;\ct prIJJ1G.'iIJ~ :111

:1Ul(,lIdrn(,llt t.o 't,he T(('n(\lr:k~' Con::::ti1uliCi\ rrbllr.;! ~("1 th,:, juJici,'1i br:lnrh or [:;'(j\'C'rllllv::nt (In \"o\'''mhrr ~, 1 V;'(, , til" j\l"ill',;rky \o:rr:-: r:difird fhe iudlri:d :dnl':ldJ!H'n~, II) r),I' l\('llill\'~:\' C''''n.qi~l::if\ll, c~Tcrll\'c '):-Illtl~\r,\' ], I~);I~ [( pru\'ld('.~, In ;):In. [h:\~' !I:: h!'~':lry I, HI71), :\11 lhu ("0\1111,',', Ijll;\)'[l'rly. JII'-=IJ('C' nf rill;' 1)\':\1"1', 'lilt! ;'(lih'C

('{)\lr(.-: 11"111 be romhlri{'d llllU unl' di~-.l riel ('n\1rL in r:\(,;!: uf ti\(' 1'20 ~'o\lnli~, Tht~Cl (,o!lnti(,'~ :lrr lQ be "llor:ll,'(1 :111)(1\1'; G:' d!.~:ri\'l5 ;ll:d c~ch district i,'~ to (,lee-I, :11, k:1st ani] dis!tln judge \\]11.) m\lEo~' be :-In ,1~v.lrnc)' liccn.o;cd i:) I\1_)ll~l!('ky, .'\ di,~trl(,,~ jlld;.:~' iii 1U\l1!~I'Ll1Ul(·Y

districl~ IlH1.<.:t, ,'l.pf>oint .1. I rI.,:1 t'omT1li.":..~-ll'\r\C'r f('lr (';lch ('\Jl\llty :.!1 whiC'h no di.'c:tricl jljd~i; r("sidc;:; The' rotnrli",:Sll)!\t'r Ill'· 1:,1. 'r~ :-In ;J.ttc)mc), if nne is 'liialific-u :1.na :l\-aihh!~', The l'll[P.lll':;~IOJlI'r \\'ill h:l.\'c t,he power to perJonu sueh dU\\[\!:i or till' dislncL cour~ fl..':

lIla), be' prescribed by the KCIl(,\lck~' Suprc·mc Courl, The C[LSO is not llioolrd b~' rlli~ ,illdiri:-d :vI1C'lldnwnt ~lllCC' lhe

poliet' court" wi!! continue to fUl1l'!IUn a.:: ("h.dlc:~gl'\l lIll!il ,1;,nu.:lry 11 1978, :t.nd sinr~ Ihr nel\' :t.mcncim('ll\ .'itill pcmllr~ llu!ll:lI\'~'l'r )\JdI::N 10 sit, Thl'S(, jud[:"r;-,:;. ro,'." hal'l'1 powcr 10 impose- P[~vr: ,sC'ntl'UCC;i' if the l\cntuck.,' Supreme" C(,lllr~ so pl'ovHles,

co

, !' OCTom.;J( TErn!, 107[,

~:?7 U. s,

r('prr'scntcd by [1n att0rncy. Appellant eJ)vt"}I'krl tlwJ. 1,i " [eder",1 UIIC 1"'0(0'< t\1lc! ('qllal proLcet,ion ric-ilL' hrrrl h~['ll ~d)ridC:I'd \H'eau;.:c he hCld hern l.rJe( an( ('( J I'~' ,: court prr:'!,d,'cl.nv,r by a iuclgl' wiLilout, If't;"d \1'oil1in~ ,111(1 tlllio without Il'~,11 l'Ol1ll'cl<'II('C, 1'1", Pt.al~ Cil'cuit Court i',lIrd the writ, gl'o.nt"~, ",nd llcld nil e"ieloll­ti:"lry hl·Gring.

The Circll1l, Court Ilokel ti,al I1ppclhlll lI'a.' 1101 ('h:li­!cllgill~ Ihe GcI~qllt\":' [)i liln [l1'l>cNxiillg'3 iJciol"r' appclkc P-usC{'ll, D.llci hl'Il('" rusl~tI 011 the "PPl'lhlll.',' pll'3r1JJ1g2, which the court. faliliel \Yere purp(J",fully limiled to the i;slI(' whet.ller nPJ1C'llc,nL could br tried before ['. jlld"c ,,1,0 WG.'3 1101, legnll)' trail1l:rl when pCl'oons oimiladv ,iLufltroJ I'lit. rr,irlinC" III larger cilie.' \I'ould he t.I'IO(I bv 1\

jurl~c trniJIl'd ill tile b\\'. The C',rcUl~ C"lir~ denied 1'<'­

lid ()II I.lie hasi, e,f ~h,> )\:cntuGk,I' Court, of '\PIX':lis hold­Ill~ ill Oi!!!1 I' [[ollll)COn, ,100 S. \1'. ~d 772 (1972), "i'-1,,::1i ci;'JJ",;c.,,'d, ,JI·\ {-, :0, ,~.',i 11'!7:31. Thl' [\:cnturk:; ('UII1'1 {If ,\I'I"':Ii< ill 1111'11 ,,(ill'meri th" tlpll;,,1 ur relief Oil

lIlt' h:l;;:i~ of !)itt.!1 v, lIo7!llJfol1. \>.:ll/Jrrl, lHlLillg that 0)1/)(.'1-

laid f'flldri :\~JJlI.\" f(l]" )1:111 ill \)1{' '.'\'('ll( of :tl! :1)J)Jl'al (;11)11

Iii,' 1.I'Il"!, 1'"li('O ('Oill'l. ju'knl('1l1., ,il{j i-:. W, :2el 10:1 I I !I;·I ,

\\")lr'11 thl~ r:l~ firsL carne hr.rf~ Oil {,pp<'al we' \':\c:ltcd

m ,lll ' ,;"rl.~:IH,nl Jinct rrrlllllldl'r1 it. "f(1r [IIrt.h"I· (:0115ir.l­,)'r:l~i('11 ill li,~ht, of the ]lli,'ilioll Prl'sl':lll," :1.'.scl'led b)'

::r:thl' ('ol11llltlll\l'calth," ·110 I'. S, ](I:':,S (1074), The --:\ 11",'111'\' (;('n('r,,1 of )\ClilnrK" in I,is lIIot,iuo to r1islliiss ~lr IIlimn J",rI requesled tlillt, I:liis Court rrlllllnd t,lIe cn.'3c "1b lhe I\rnl\lck)' CUlirt of .'\pJ!Cals for tlol1sidcrat;oll of )jolin,nti,,", of :'tl\t~ Ja\\' h,(scd Oll the "1{U;eSlioll til ret· ap­jll'llt'c' jurige had "lllist~kl'lJl.\' 111I1","l',j a '<'llll'.II('O of illl­

(pril.;()111l1C' n t, lllJO!! nppl'lJallt fnr a fll"~~{ nfT('fl!'f' uf drivillg whilf' illloxi('nl.;"c/, whl'rras ill1jll'i-::nl1llH'lll. is nuL all ~ll~ thut'il.~tI pUllishl1lellt, fur IlrsL un'cndl'J's , . ,," The

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NORTH v, RtJS~lCLL

Opinion 0 r 1 he COllTt.

Ii:cntllcky At.tol"llcy General conceded t,h!'.~ ~hc writ oi hubea.'3 r.ofJ 1US should kJ.Ve ucen grn.nLcd ~nd requested an opportunity to rorrc'r:i tit!' en·oJ'.

Oll remallci, 1I00\"0\"or, t.lte I\en~uekr COlI;t of Apponls declined to decide the case on tlte st.olc groullrls prcsent{Jd by' the At.torney Gencral, noting thflt ~he fcrlornl con,~i­

tutioll:t! is~ue "I\'as and is the only issu~ before us." That Caliri, noJ,r,d that appellant oought ollly t{) "V"t the l'llnsliwtiunal statu., of In)' judgcs in criminal ea~'c,'," :\,),7,1-;2:3 Drar, ~1. 1\1;,;).

r)ll Ihl' s('cnnrl 3]1]1('al tD this COllrt, \\'c nou.d probable juri,diclioll, 422 C, 8, [lllO (J07:;),

(2)

.. \rprllant's fir,'!. rhim is Ihnt· wlten cOllfillCmC!lt. i' " pO',i"l(, pl'lIal(.)', a i811'-tr<1illrd iqrlf'~ is rCQ\JJred b,.- tl,e [Iill' J'rcH'cso Clall;oc or the Fourteenth .. \In,'n,ll1~ \\'11<'l.[,t'l' 01' nul a Irilll ric 110l'O 1)(,[01'(' ;c b\\,I"'l'-,iud~r i, [\.\-nlIaI±':'-

1.\~I\I'II· III Ii 1111' Cnpr'd ;"':;\'f'': Cl1\~tlt\ltioTlI 11f C(1l1r""", ';:<;\.:., llJ'I'\'I.~:I'iL-' I)i ~(1IlH' .-!:ITC (:,:,-':~"'i(111", "'!, I', rJ. >:, Y. Cell"': . . \:-~. r:, ~ ::;[11.'1 J: ;..:., I), COI];O:l .. \:-: ,~. ~~ !Il, ~:!, L~ :-:11t'ilT :1: I!! ":I~' ~"Ii:llr'··

111"11( ill:ll jlld!,,,.: 'J[ tll( \'J'I:t~i ,"':':""'~' 1'1~:\r(::, irll'ludll;~ ,[II~·\'.'I'.~ ("I

lilt, .-::(1)11'1'11;(' COllrt. h~ ):\\·;\'r:-.'i (Ir ")I':\rlll'd ill (h,! 1:1\\',1' ~~. 111[\1 in !'\('(\~~' of <):jC; Id ;'Ii !"rlmil1ni (','SC''j in EnC!hnd nn' :rI('d

!ii:i',rl: I.\,v Jl:t1~ilTI'0;:'-r;-~I' j), l':trll'\l. Judlcl:li :\dll\11l\'i:.\iJ(~ Tltp~ :\InC'ri(,:l!l E~pl'ri';IJr.'r :3:2: r J~'70); H .. \i)r-:ll\;lln, Tllf"Jud!l'I:11 Jl~Up> r· . ..; 1J4Ii-'2·t7, nntl n, ~ (:;d {,d. 1~11i'31. Wr: ;Ii~(l nn((; th:t! mil!I>' Ili 'lIt'

~\;I1('::. III lill' t:nitnl S\:I~f'!:o w\lj"h 111111/,1: Ji')Jll:i\\;.'rr jqdl.!l," )Jr\)\ldl'

rn:ll1c!:ltory or \,ollinlar;.' (n\ln;ll~ prog-r!1nl."', ~('('. c, (1 ... 10w:I C(1d" ,\nn § CiJ2,.'j{) (G). (l\17.'il: La, l\~\', ,sl:tl, :\1111, ~ 4!J::2.)1 I (Supr. 1~17ll): ?<.1p:;.:::, Codl' A11n, §~ i-b-:i(j, U-II-:{ (1072); ;\10111, Tll"\', Codr.~ ,\I1t],

~O.1-<lOl (SlIpP, 1975): ~('\'. Hr\' SI:LI. §tTn-.;n (1 1\7:il; j\, y, rni­furnl ,JU:';I!t'1' ('-curt I\LI § JW, \'...'\\]Ip. lU7~-1!J7(j): ~. C, C-:\~..: L:\\\'. __ , [~. 850, § 11 (l0,':-I): :\. 1), ('0\.;111,. C(\dr ~:";1-1S.{),C; (In· ll'rilll :--:llpp. HI;-rl): ]':1. ,\.llnl AJJll., TIL ·I~, ~ J'21·' (~lli1p. l!li0-­lY7i),' Uli~h (:0<10 Anti, § ';"$ .. -,;-27 (Supp. l'jirl); and [r:1. JIl J!1g

334 OCTODEH 1'[0;[\0[, ]9i5

OJ.'iuillll of the. Court 1~i U. S.

It must b~ rccol'nizcd that therr. is & widc I;"P bet,rccll thc [unctions of n. judge of n. court of v,~ncml jurisdic­tion, dealing with complex litigat.ion, [mel the fllnctions of a local police court judge) lrying ~, typical "drunk" driver case or other tfame violations. However, onCl' it appears thnt. cononcinl'nt is nn :t\'ailrcblr. pcnclity, the pr()('<'s., COlllllln 11(,10 scru tiny. Sec Argcrsinqcr Y. H a", I i71, 407 F. S. ~5 (1972)

Appelbnt. nrp;Ul'S thnt. rbi' ri.~ht. to counsel articlllnted in .. lrgcrsiJlgcr v. [{(I IIIlill , 8ll/;,.0, :lnrl OideoJl \'. 11'''111_ "'right, :372 LT. S. :33'j llliG:3). is I1wallillgiPss withollt " I"\\'!'cr-jlld~c to under'stand Ihc n"~lImcn(s of COI1I1sCI. f\Pl'clbllt. also argll~S thnL th" ~11CI'~ncl'cI com]Jlc~it), of SUIJS\:1I1t.i"c nnd procedural crilnillal I (t\\· require,> th~t ,111 J<lrigc, no\\' he l:l'I:)'er5 in order lo be able (0 ruk eol'­rc.~clly all the intriCAte i.t.:.~ucs lurking (:\'{:r1 ill some' .5iIllplc Illlo(kl1\e~llor caOl'o. III lhe eOlllc,t [)f the l\clltul'k" l)fD~'c'duf('::. hO\\'C\'~lr. i~ it> l!IlJle('e~~ary t.o )'rnt:]) t.he qUE's.

tioll \\'het!ll'r a drfcl<d:lIlt eoulcl be COllvictecj alld illl­"Pl)!:;.u!!c·d :!iU'I' 11 ]Jr(p(c(~clJll~ in which tIl(: unl\' tn~tl :11-'[urdc,d t,.., cOlldur:lr:d by' ~ ,Iudgr', 1'11 :111 inst~T1('('51 a \.k),.'lJd~dC j]] l~Gl{'.k.v fa('il'l~ ft rnrnlnn.l ::(,llt{'lH'C' is

rn-;uiul'{[C'c\ ill) (lPIl()n.unit~1 to h(' tncr{ d[~ ?lO'l!() in ~ court.

>' pfl.\sidl~d OV01' hy (L lHw}rej· .. .Itlcl~l~ sine(~ a.ll [\.])prfll fll.lto~

:: 1l11l1.II·lIllv "ill'alcs tlw cnnv1c~ic'" ill I)oli(( cuUi'l·. 1\)'.

,::1(l"" ;;t,,1-. '\Ill<. ~n.U:'L (1071); I":)'. Eule ('rllll. P"oc.

rn:!!lu.l1~, :'(,f.', (' g.! r:, Hrnwn]l-(', 'l'lw ~If\n(:ll\i'\. ,Tul.:li,:(· oi Ih(l l\.:u'c :t>:\IJI\ P()lkC" .I\\c1i::c (IV';()). Th(' hlicf of (Ilnlr'lI.~ C!In'nt" New "{ork

SL1.l(l As.~ori,'\ti(m o( M:q:;lslr;ltr:: inlorlll.11 liS lli,1l" of (.lie ,sl<dc,s

th"" 11:\\'(, l1onl:tw.r(~r J\\dj!I;',:::, Llr.d;nrar(', J,'lorid:l, Idnh0, Iowa, ,:\Ii-;­:-i.,.::ippl. \lnnt:l/l;~J I\r.\\' :\ir.:-'1('(J, XI'I" Yrrrk, ~·Qrr.1t (':~roJil\,'\, :\nrth 1 )alwl.,'l, i'I"!!lh'yl\':I/d,\, TI"\:\,~. 111.:\11, \\"L~.]!illl!tl)l\, \\'l',"\' \,il'.l:irtia., .'I.nd \\'~'LJ1\llllg !l.Ivn lJl:\/II]:l.!or.'.' lr;\irll!\)..:"' pfw!r:tlll", :lnd (\]:1 ... );::1., (;("()r~l:l, K:LII~''\....'!I Leu i...:t:m:t , ?lfi:,-.nllri, l\1'Y!l.d:l, i'\\'\\" I!nJ\l~!,hirc, Orcll:o!l, ROIlLh C:lrolJI1:~, T(,l1rH:~~~, VCnnUll!., :\lld 'YI<)l'r.H1.l.'in h:wl: \'(J!lm­tnry trairlLnr; progr:\tns,

, .

NORTH u. RuSSELL 33J

328 OpinJon of the Court

12.00. The lrinl de "ovo is availnble rcfter ciUler a tria! or a plen of gllil~y in the police court: n. defendunt i., entiLkd to bail while. awaiting the lrinl de napa. 51G S. W. 2el 10:3 (1974).

It is obvious that mall), clefcl<c\ants chargee! with a

traffic "iolnt.ion 01' othcr misdcmeanor may be IlnCOUI1-soled ",hell the)' appear bd<)rc the police court. The)' rnn)' IlC' unaware of t·heir ri~ht tn n de 110"0 trinl niler " judgment is enlc:rcd sillec the decisioll is like!:; to be pl·Ol1lJll. We (1,,11111(' Lllf'I. ]lr,ji['<, "ourt judges rrco~l1i"l' tI'ci1' obli;:!(\\.ioll ul1ch:r :\1'(/e1";1I9['r \'. /{[wilill. ""1"0.

"',

to illform dr,fenciall·t" of (ileir ri;~ht, to II I"",,,(>r if n ' c{l srnlr'llr'c' uf 1'onon('mcllt i, to 1,(· ililposerl. The [<»\1('110<' 1 Q(!~ r

jucigc' I{'s(ifler! [.I<n[ illfOllllill~ lkl'ellr!f\lits of " ,.i~l\l. :1I '\ 6Y. ('OUIlSr! "'(1" "the stanrlnnl PI'UI:l'rllIl'C." .\1']). ~~ \\"(, .f~'" -'-1 :J also n,sUme thnt police court .. lllrlgo, in l(elltllCk,' r"rn~- '-;; IV ." IIIZC' (11('i,. (olll.~"ti(:" to 1I1rl'l'll\ :11\ Cl)lll'lrlrcl <I('\(,IlClaI115, 'h1l\1.{;6- A-~ ])l(·lurlilll! [lin::;0 \\lll: \r:l..I\'(,d I'"OllIJ~r! or [(Jr. :'(110),11 ll:l~)~ ~(j prjs()f1nl(~nt \\,~\o.:. not. J1'll[w::;NI, u[ tIH'Il' UllCOJlciltlOllJt n;,,<,,:, rt ~ lu ~l lll:d ,Ie /,1)1"(1 niHil'\' llH' lil'(":-:.~lt\· t!l[l~ ~\I1,('~lPI)t'~l! \,;~X 1w h..lrrt \\jlldll 3U (lay~ ill I.)rlicl' tu \l1Iplcnwnt tll:J.~ l"lS'1l1.

K\,. null' (.'rim. 1',.0('. 1~.1J.1.

'111 ColtCII \'. ;':clIillckV, 407 l'. S, 10·1 00721. \I'e COIl­

~idcrcrl 1\Cllt.lI(:k)'·s t,"'C)-til'" ,ys(cm tilc'1'e ch,dlcilgeu Oil

o~hcl' ~rOUlltis. We ll('\<,'I\:

"The ri~hl. 10 n· ne\\' erial is rrhsolll\<::. ~clcf'~lll.hll' ll(;(,d not, [l1\c[!(' (~lTOr III tl~e Inferiol' COllrt· ]lr~w('('dJllg, -----------.if he seeks "' Ill'\\' trinl. tile j\(.'[lI.\J('ky statutor.\· scheme l'olllcln[1blcs [1i,1t the .,1:Ite IJC wiped clean. Ky. Ellic Crim. 1'roe. 12.0C. 11rosccu liOll oncl de­frnf=(.,l b(~gil1 n\j{~\\,. . .. The rn,'~c is to bf' l'{l~~lrdC'd cx:tetly ns if it. hncl I '<'I.'n br,-,ugil(, thl'rc ill thl' first ildnlll'l'." JrI" nt. Il:l.

'We went on to note t.il"t th~ jUotinwtioll~ urged b)'

m x :r:

>

I

lr-, --l1')

3JG ocronrm TEl,,!, 1970

Opmion of tile Court 427 U, S,

SW\t~s for con tinning such tribunn.ls' [\1'e the "incrcM­ing burdens on st,at.e judkiarics" nnd the "inkrest, of hoLh the cldendnnt and the Stnte, tD provide speedier nnd les.> costl:,' ncl.iurlicntions" than thoS(' provided ill courts "where l,he full range of consl,it,ut,ional gU[1.rllnt"es is available "Id" at 114, ilIoroover, stat" poliry t.akes in to !lccount, th:1t it is a convenience to those charged t{) be tried in or n('[lr thclr own cOlllmutlily, rather than tro\'c! to a dis[:cnt court ",,11['re [I ]aw-trailtt'rI judl(e is provided, and to have the option, as hcre, of n tril\l nfter rcguJnr businc,<s hour,s, 'IVr' t{)ok Itot" of Ll,cse pl'"dieal consirieratiolls in Coiten'

"\"0 [\I'e not persundt'd, h01l'el'er, that the J(enlurk,\' ~lrj'n!lgr'111cnt. for uC'(l\ing with Lhc less ~crious,0t1cm:cs disa(h'nntngl)S defendnnts uny morc or any lc~~s LiJa.n trinl~ ,'ontluctecl in a court of gencral jurisdictioll ill tht' Gr,l instance, n, long n.s the latter nrc nl\\':1.\" ;l\'r\ibl11l', Prl)('C'I)rlin;!~ in thr 11l1C'riclr ('ourt~ nrC' ,:;:!illpll' :lnr1 ~)1ppd~·. ~l1Hl. If t)\(' n'~lllt.:.: 111 C!lll;'ll':'

<'a;!(' [\J'C n.n:,' n'idf'!H'l', tlH~ P{'llHlt:' it,; not l,hnrucLc'l'r ist.1C~\11:· ;;;r'\'('re, Such lJr()ce(~cling:3 (lIlrf n r1c(\..'ndant

the OPPOt,t,ul\it.,' to l~artl ahou, the pros('cution's' ca'l' :\I\d, if 11i~ t'hOll't'S, h0 lIt'cci IlliL 1'(.'\'1':11 his 0\\'11,

He lWl\' ;\],;0 )1lcnrl guilty \\'llhout t, trial and promptl)' srcul'e n de 1i0VO t!'lnl in n COUl't of gon­eral criminnl jurisdiction," /d" III l1S-110,

s i,','!? obp~r\"cd in Coltell Y, Kf'71lwl,:): Ih'1I, in the fir.-·[~til'r

lnhllnnl..::, "rsJomc [S/II((,,'), inf'J\ldi1!~ 1(('nl\lck)', do nnt re­l'()I'd \,rl)(,I"'(.,(11I1I;.; :IIH1 rIle" jlldf:"r~ m:l~' 111)1 lH) tr,\jncd [rlr the'lr pq"l­lint:.:: \ ill~r:'r h,\' {'x),rf!!'!H'I' M ,"rjl(lll\inc;,fI .1 117 1.-, ~'I fl.! 1 H, W{' tao)..;

hOIr: of the l\('(llurk,\' C~'\lrl (If Appr~t!,,! C'n!11.l!lcrlt th~1 "'the infenor ('(\urt~ nrl" no! dr~it:llr;d M \''luipped 10 f'[)!jdllct I'rror-frcl~ tri:ds, or to irl.~lIr(' full rrCOL;"llilill!1 (.lJ' tDnslil\ll:flJl:d iTl'{,dnm:;, Tbey ttrc

((lurt~ of r.0rt\ ('nicl\\'~1 In pr,m iu[) spC'C"dy aBel in()~pt;'n,<:ji\'e Il1c:"\l\, or

~,~I.~.?(),'>itlon ()f ['h~~~! ()j mir'll}r o~cn"H~_! Co/(en \" Cf)mmonwealth, "1{j1 Q. \V, 2d, J;l.1.. ,)/(1. Id .. at II (. ) ,

,-

" "

NORTH v, RUSSELL 3.37

Opinion of the Court

'Under Ward y. Village of iy[onroc1Jil1'c, 400 U, S, 57, G1-62 (1972), np]lellunt, 11.r~uos th!Lt he 15 ent,itlctl to 11. 1~\\'YN-.iudgr. in the first, inst[ll\cc, There Lhe jUd';8 was also mayor nne! ti,e \'illn"e received 0. subctan­tinl portion o'f its income fl'om fines llnposetl by him n" judge, Simtl"rl~' in TLl7ney v, (Jill'O, 2~3 1.:. S, 510 (027), the challo11),:I' \\'as directed 110t at, the 'rn.inin~ or

cdlj('ation of the ju(k,' but at hi, I'cl,>iblc Gin" <lu<' l(1

interest in t.hc out~Ol1ll' of thc ca<c, because us in .1[UII­

rocoil/e ho wns both ma,'or nnd Judge ~nd reeci\'Cci n portion of his COlllllonsatinn ciirr.c:liy fro11\ the fines, Fintlllcinl interest, in til(' fincs \\'elS tltl'u~ht to rtsk a Ilnosiblc lJias in findinf( ~tlilt, al".1 IIXlII~ the amOullt of 1i,H's, and the Conrt, fOllnci til at. I'o!I'litinl [or Gill"

i Inl'crm iss i b le, 1.-nr!cr tho ,Kc'llt,uck)' ,',',qnm, a,s we notc,r] i:1 ('ol/CII, a

r]d,~nclant, r(ln Ill\\'O all il1it;:11 tt'I:,1 hdl"'" a ltl.\\'\'ol'-,iu,li:r l\~: j'llv~dlll~ ~\l!lt:' ~I: til" \lujil'l' {'f),lrl, tilt; ... 1,\ p;:;:::-:ll1,~ th:JI court and ~('I,'kill;! t)I\: r/t' 1](1)'/1 1l'1:l1. "l't';I:-:1\lg , . , (\11;,'

('Ulls~qU{'l1('(> Lllal, ',\'(')ujrl (,llllt,'j'\\'l:--l' j'olll1\\' 1'\'1.1111 tl~l\dl'!'il:~

tht, li!Uil!,VI plcl\," .\1.17 (',:';" at 11\1",l~U,

Our' (,onl'Cl'n in pri,,,' ('a,"" \\ :Ih .inrlicial fur,r'liOIl.' k, ill~ lwriormcd b~' l'Ioll,iurll<'I:l1 ollkcl's !la,' :11,,' h",,:, cli­rrc(er] at thr' lll't,d for illri('jH'Il(ir1Il, lll'ltl!':ll, :1il.J d(ll:\dlrd

iudgll1el:r.,. not, (\t lr>gal trl\:nill,l.:, ~C't!. Cl;[)I'irly(' \', .YelL'

'lIo~'fJ"itirr, ,\0:3 'C', S, ,lel:3, -\-\<),-1.,j3 (10711, Sec :ll,o, c, 0,: Whitrlcy \', ll'o re/c II , -lOJ 1.1, S, ,jljtl, ,iii·\ 110il);

Kolo \'. United StU.l"8, :\~!I L :3, .'H7, ,~,iG tl%/); 1I'ollQ 811/1. \', ['niterl Stoics .. .',il r, ~, 47i. .J,sl-'c':: il!lC3). Ycr ~'n~r\,=, ~\lI:lI:'\!-' S/{(]r/u:ick \', rilil 0/ 'l'rllllpn! 407 C, :" :l,j;; 11Ui~ I, (Ire t't'I,'\'al1t: 1n)' lll~!:i~lr:\los nllri othr.r ,illlhcin.l ufllcC']"s Clllj)l)\\,pn'c! l{) iS51H' warrants. must deed \\'jth e,valuation of ouch Ieg,t! ctJlIc"I'l~ as probaulc cause !\lld t.hc sufficicncy of \\'~!'I'nllt niJid:t.\'il.s, Indeed,

33S OCTOBJill TERM, 1975

Opinion of the Court ·127 U. S.

in 8hadl1'ick t.hc proll11ble-musc evalur.t.iOI1 modo. b), thc by Inogisl.mtD rebtDd to 1\ clmrgc of "imprcircJ driving:" ,

(3)

Appelll\llt's secolld claim is t.hr.t. Kent.llcky's cOllstitu­tionn.1 pro\'isions eln.ssifying cities by population fwd its stl\t.utory provisions p(rlllit.t.ing by judges to preside in soille cities while reqllirill~ law-trained junges in others denies him t·ne cque.1 protcc.tion g-llamlltD{'d by t.he Four­","nt.h :'uncndrnClit. Tjo\\'cvcr, allileopio. within a Sivcll cif.v nwl \1·;tl,;~) citjes or tb.c_s:mw c:jzc nrc t.n;(\~.(l(l rglla)ly,

-Thl' l\clltuck)' Cour, of !\ppc:\ls in DiUy v. /{a7llpton. ·"'I)m. artieuhled reasollS for tilc rlifierillg qualifient.iol" of jJol,ce cO'II-1 jUIJ.ges In cit.ies of (Iin-ol·rl\l. size:

m

-,

"I. Thc grl'nter volume of COIlCt husinr's" in (h,: hrgcr cilies rcquirc, t.IIO\1. jurip:r., 1)(: :d.tornc),s (0 CI\­

:lhll' II", COUrts tv 0P"I'~(" rrtiei:'lill,v alld r'.\ilE',.Ii. ti(llhl,\' (lloL lle('l'.::~nrily ",iell lIlore r:liI'Jll'~~ ~\nd illlp~rti:c1il)').

I •• )

11lOrl' ::\,:libIJk in tJw 1,\1)[('1' cj{je.::,

oI:L Ti1(' J:tn;t'!' C1UC'S ha\,(l .u:J'cat~ll· fill:\IH'i~d -<O'IIT('.' lI'ilh which to pro\'itir 1)('ltI'!' qu:difi:'d -<Olill:'/ ~I\d lJl'l·kr fa~ilit.i('s fur ,118 c()url~."

»- S. IV. ~d, at. 77G.

TIi~t. court. tlien noted: "That. pupuiat.ioll ~nr! M":\

(:v.turs l\\it!, .illst.if), clnssi~c"t.iolls lI'it.i,in It "0111'1. ,)'.'_

t('11I lin., IOIlp: hcr.'n rccogniz"rJ." Iri., at. 7,0-,77. The Court. of Appeals relied upon Missouri v. Lewis) ]01

'In Slladwlck we eautiollcd:

IJ[OJl!r f(·d(~r:tl .":ySlfllll wr\.rn,,,: (jr COIIYOI tin,!! drsir,l,bic praC'ti("{> in"J {'on.'ititll(i\.ln:d CQJJlln:lnUnlC'Tlt. It. rC('!lgllizf':-: ill pltlf:1) :1!ld di\'(~r . .:(' ~I:ll~ :l,1'1\\·iliC'.:'; olle h·~· In l1:'.tion:iI innCl\';'1.tion :'il1U \'itlllil)'. ~t~t(! .• ,'\rr t'n!iLicd tn Seme [lexibility nnd JL.C\\'~\' It .jQi t·, .~, ~d : . 353-351.

.. /: '. '.

)', ." 1.);~')::· ,.~ ...... "

i~ ~' " ,

NOHTl! II. ]lU8SELL 339

328 STEW)' itT, J.) (hSscotml;

u. S. 22 (]830), which held thflt as long n.'l all people / ~,A Ii t;AA

within I.he cln.ssilicd E\re.~ arc l.rcl\ced cqu:clly:. (. J ~

"ElICh Stat.e ... rna:-' rst.'1.bllsh one syst-crn of courl.;; ). for cit.ies E\l1d allother for ~ural. districts. olle S':5t>2111 6fi1 for one port.lOll of It,\ t,r-rntar." "nel ."nother S) 5 t-e 111 J for nnother porclOn. ConVenlenc.e, \f no; Ilcresslt). .,t-oflen rcquirr'.\ this tl) lx· dOllc. l1nd it. would .<eriously 'il' \ illtcrfrn, lI'it.h tlw power of !L St.ate I.(J rr~ulnte its

. I' . I .. II , internal alTairs to del'Y to It t \15 flgdc. 0 .. a, 30-31.

8,,8 ~cncr:dl)' Solsburo y . .1[ar!llallri, ;'·16 l'. S. j.1.) (1054) ...

Fall ,' . . Yew ror/:. 3.32 C S. 2Gl (10,17); .HOII'-' ,'. Co'lrJill, 400 F. Supp. 2:3 I ED:::r )[175) ((.hrec·,iud~e courl.). ,llmlnorii!, ,,1T·rl. ·i~J C ,C;;. 10Gi' IID7l".

\re conciurl" t.h!l.t. lilt' Kenl.llck)" t.lI'o-licr tri~1 COliri

s\'~t.crn \nth lay illrlicin.l ()fTlccr,t; 1\'\ tllf' )Irst tll)r Iii sr!1:l1k;-• ----- i" Cit,it'''' alld :l~i2l~('r.l of ]"(ljin \)"1111 " de !,III'O In'] !~("nrr> Q,

t.raditionally in\\"-tnUlH'd illrkr. III th~' Sl'l'(1I:rl r!(X'~ )H)t

\'jl)]at(' {\llll(~r (.hc' due' pr(1('\',:"S (11" l;qu~l i)rOk('f;(W~­:111t·CC'S uf (.)1(' COl1:::tltllliclll oTlT;;'Gi-UTZ:71 ~t:ltf:::': J.ccord· ill"I)' the j\ldgment bcior~ \IS IS

;'lIn. ,]vSTJrE llnEl-ix.\x concurs in tlie result·.

'-In . .Jl!STfn; Sn:n::;-s look no purt. ill t.h~ con;:der:\tiOl: or deeisiol! of this cuse,

Mil. JU~'rrCf; STr.WAHT, with whom Mit Jl-i;T!O; :'Il.\n­

SlIALL joins, clisscnting.

Lonnie North \\'1\., Ii~lcd illto 1\ Ti:0ntLlck." (·,-il\\inol ('ourt !l.ne! there tried, cOI\\'ic[,,:I, ,\lId scnt~llrcd [·0 a tcn" .. b J ) l' B l'ussell Judce l\.\lsscll of l111pnsonment )' lH,ge. '. . ,,-. ~ .

is Il. coul miner without an)' legal (ruining or edueaclon

.. ;1- J\

oc;rOBEfl TEJ(M, 1075 }()'~::;:~ /fj ",0 Y,(I

NOHTll l'. nUS-SELl, 3-11

~('- Jf~(r 328 ...'> J ~5!.' .

whn-U:vcr.' r believe thut 11 trial he[are suoh IL judge \ltV ,<Jc.;ntrY if Sn::Wr\p,T, J'J di:::~cntillg' 427 U. S. STEWMn', ,L , rtisscnting

thnt rr,ult~ in the imprisQnmcnt of the defendant is' ~ con,titutionnlly intol"r,dJIc. It. deprives the nceuscd of II his right to the eA·cct.ive assislitllC(' of counoc\ guaffln(<?cd ~ .., '.' Il}' th~ Sixth and Poul'tccl1t.h Amcndments, llnd deprives I.J" Ililll ns wcll uf due prOces.' "f law.'

1 T)l(~ ,ilHj~(' .1t l':r)r(h',~ ,q:tlr: ha\)c;',\. r\1fjlll<; hCi1rinc: I'onr;\tllkd'

"1 think lhc hct h;l.~ br'f'!l (''::I~lhheJlt''d til:ll rJudp:e 1;ll:-...~('J! )::.1 110!. ,1

l.\\\·}'r>r. ))[: dllr.5ll\ kIlO\\' ,'\1:,' h\\". lw h:lsn1t slwiicd :'\1\)' 1:-1.\",.11

,TllOC:: p Hu.:::c'li t('_~tirll'd til:tl he· h;lrl ullh' ;\ hl!:h ::c!lOQI ~d1JC'l'.tiol1. Iir. h:td 1)('\'l'r fr:'(,(,l\'rd :1!l:" trill!)!!!!: COllcrrtlil1j! }li5 dutic-;.; :l,!; .'1

1.!:' ,il!d~(' Tlli.:; I" IHlt :l r.".~,·. tIH'rr>rorc. ill\'~'I\'i!H; '\ 1:1\ lllrlc:l' who )I.l~ T('rf'l\(.ri ~ i\l!lt: OJ ~P('l'I:'1 lr'\!ldllrf Ill'.!. ~1')('r'lj . ...::I"!( .• "\~ 'I:!,I\ I'I"I;,I!- ..... 1'1· (.Iill'. ;l~ :;;;:3 .';.'jl.l1. ,j,

.\ ,,,[lid,' (I) ~ (':lll(rlrnl'l';: 1:\\' jllcicC' . ...: ll1:!dr in 10,:2 "')lo\\'L'd !lJ.1\

;)~(";. h,t,1 '10 ('IIIH':llinn ix'\·nnr. hi[!"h ~("hf)()l wild!' J:\~ h.'lrl {'\'I'll lr~.' 1~'r:I::li .. rj.i,·:,lhm (;0(1/\11,' ju.,i'·r, C'tJurt. l~ ('.II. :)rl.::~':~, :{.'(I II ;-,

:)':.-) I'. ~d 7::!, ~Il 11 :-.. \ !IJI.;I~ :;11l",'('\' fC'\'f':ti,·d JhilL ('11k ,j% cd I"ir­

i:':1r.i,1..':i ,iIlI;;Tlr.'!'3 or !hr l~:,1!'f: )'I'rr' "!I:If'(:!:(, !!r':II]II;I1' ... ·, \·o~r·. ,~'2 \"0.. 1.J

HI.'''', lDl, 177. wi!i!I' in HI:lS nIl' -il'd[ r,'- \\'".' \'jr~ir:i~,' .l'l~:lr('..: had ll!d I.Cl;/lrdr [l·d III!..:] I .::., hllll:, \""". ,j~l \\'. \ :1. L ]{I.·,· ,~:.I, ;j~:\ 111

!(}';'I, th,· \"l"ilill \:lll h ',I'\' I;,·ll·'r.,1 ": ,\I], ..... I ... I)li'[ '\,:11 !!1!' :--I:,r(,~' ,jl:.!;;': :1.\ 1·'l:11:1l:-.~ilq1 Ii .11 "::,)~: 1)[' lill' ill:-ll(L'" Ill' :;,l' i'l'~U'" :Il'{'

111<1111'11 III 1"jll''',li1il\:1i' I,.II'h':~I)\llld III !III' ('.'\I"I'~ 111"1 1)lr',\' 111I

lillt r:I;.I~bll' II[ kll'IIIJ:~ ll:1' 1l('<'r.~~,1r~' 01"111('111, or bw." lIr>:Jrillg;; Oil

.11]';))1" (If 'h~' i'I'.1!·I· C'!\lrt~ ,'UII! ,Jlld(!l'~ l)l·fnrl' I hf' .\[i;.;.~i.~,~ip]ll ,111,1\1'1,11'," C'IIUill~I""-1i111 (l!'~lilll"ll~' Ilj' j:, JllI!.:u Xt'\\1'0mi), ,~r,), 'I'.lo({,d II', l'nll:!llr':ll .. -1-/ :'JI~~. 1. .. 1 ~'~\',;, lUll!.) 11, :',1 (1~17.'li.

:.11 ;'.';I,~r IWI) .r.:i'\lr {1,IJr", 1l:l\C' hold lll:t~ ~!I,'h ,'\ l)'i:1I \iui:IIt'.­

III" !:l1ikci ~t:lll.';' (;".l11~IJt':(]('l1, (fordO'1 v, J\I.l'Iicf; Court, ,W}!f(l:

,0.:./" '1I,~'rilflt \', J071I'!)',. :\0. :2".2.j~).j.' (L~t:lh :~d Jud, J)bt'l Junn ;l. 10;-.)) .

CrllllClllror:1fY ,~llIrlll~ of ,\D1C'rir:111 cnurt. :::,rstcmo;; h:wIJ brC'11 1I1l:lllInlrl1l3 ill I"dlill~ for 111(' l'li!!lill'dl()l\ or l1(1IIi:I\\'YN judl:!v,'i. ,Sec :\HI\ Cnl!\rni,c~jlJ1\ nil ,sl:lllr1:IJd,! IJf .1tlfJ!ri:d ,\rjllJin))1.r<'1.tiQn

J Coun

(lr~;lJ]lZ,llillll ~ 1:21 {l!l7·11: ;"\'(I!illl!:d .. \d"t",:uf!' COIl11l11.-';:::llln()n Cri)l!­ill.1! ,J1).~!l(,(· ~tnll,brd.-; II.' r:li·I] .. , 'J'1\~:k Fun'(' ]{I:por!; (:ourl'~f S!r\lld. :trd ,t..l (lCl73); Til{' l\f'.~lrll'III'..; ('nllllll1....:.... ... ioll 'JII L:ll'. Eni'Ofr['Il1,'!\!

:Illd ./\Jmllli ... arnlion ()C ,jlHicc't T:J~k Forc(! licjlIJrL; Tltr.! C(luns :3G ,

I

A

The rensons why ~ licfcncln-Ilt. in {1. criminal trial needs " bwyer to 3"is~ in his defense l1!lve nowhere been bet.ter put thnn in thc oft-C'jllotcd \l'orels of i'I1r. Justice Su ~hcr­land's opinion for the Court in Puwell y, Alabama, 287 U. S. ·j5:

"The right to be h"anl would iJr, ill Iilany easl's, of liLlie ,,~:til if it di,l not "()l1ll'rchrncl the right (0

be hr;al'c1 by OOUIl5('1. Enll thl' intdligent and ccln­""le'd inymnn has sm~1l anei sometimes no skill in t.hr' '('ience o[ lnll'. ff charger! with crime', he is in­cOI'nbk gel"'r,,II)', of rktrrmininec for Ilim'l'if ",llNlier t.he indietlllcnl. i~ ~ood or b~rl. He is un­familiar with the rules of eVidence. Ldt. \\·;tilont, the "ici of eo((n.oci 11<' 1\18)' be put on trllli \\'ill,o((t n proper ehurv,o, l\l1ti cOI1':ivted UpOIl .inc0ll1pcl<'111. cn­eicllcr. or (,\·iclence irl'olc,""n1. to tilo lesue 01' other\\'I"" "llldl!1i>"ihl('. fil' Inch botl< tlw lOkili l\lI'i kllO\\'I­,-'dgr: ,'1dequHtl'1,\' to pl'l'pnn> ili.t;; dl)rrll~(,. (':'11n tll?;l~h

he h:~\'(' :t jwrfl'('t (111(', I Ir rl'<luil'r.:::.: tlH~ ~lli(jlIlg

1)[1..111.1 or ruLln::::l'] :11 ('Vl'I')" stl']l in Ilw pJ'l)rrIJd!ngs

:I.'::lil1,t hil1l. WitlillU1. it. 11,0\11:1, he hc 110t, ~uilt)·.

ill' t':\('('s t.11\! d:',l1P:Cl' or (,()ll\'ict.iOl1 brC'.'Hlsc· ho doC's 11'.>t knoll' lin\\' to rstnhli,h his il\nocence." fd., at IiS .. liD.

So it was th~t, beginning: with t.he ('.1]1il:]1 case of POII'ell v, ,Iiaben"n, S'I)!f(l, ,'xtcndilig through 1.l<e jclo(1)' (,.'1s{' ~i Gl'r/con v, Irail!ll'r{oht, .J7~ U, 8, ;)35, [tnd C'lll­J11inatinJ': ill til,) mis(kllH':1110r Cl\se of .. lr[lcrsill9cr Y. Hnlll-

(10G7): ,\u ... i:,:of!' Cul11mi ........ illLl ull llltt'Il!U\'C'rllll1l'lll:il Hr:-i:'lli-:'lll:::' ,~!;\~~­I.nl':iI HI'I::LIOIl) ill lilt, Crill]!ll:d .J\\.,jlC(~ SY,-:U'\l\, Hr'l'OJ!l11l1'1I[bt:oJ1 _1

(1971): C011~(,1l~tl:-; ~1:11('ljll'!I~ or tl'tr' ~:\tinnn1 Canl('renee on Ihe ,judici.,,")', OJ J. ,\m. Jud. Soc. 20, 30 (lUil).

342 OCTOllEIt Tr,ItM, mi;

Sn:W.l..RT, ,T., dis,:;r.ntiTlg .427 U.S.

lin, 40i '(T. S. 25, t.he Court's decisions ftrmly established thut !\ person who has not bern accorded the constitll­t,iunnl right t.o the L\ssistnnce of ooun&:l cunnot bo son­kneed to even ono ehy of imprisonlnent.

But. the essential pre:;uppositioll of this l)a.,ic eonstitll­tionnl righ t is thut the judge conducting ~hc (rin.] will be able to understand wh"t the clC'l~ndallt's lawyer i,< talkill~ auout. For ii t.he judge hill1s(~lf i.< igllomnt of the hII', thell he, lno. II ill be incfll'abl(' Ilf d(~tcrnlilling whelher the cl,nrh" "is good or I)ad." Ile. too, will be "unfallliliar with the rules of ol'id,'nc('.'" ll1\d:t I"wye'r for \.he

J ,iwlc;f' Hu,<:;"c:cll (~:"i!il\('d (hr:t ill' ]I[\cl 1\(;( rC'cc'in'<.l :lTl~' tr:lininl!

;Olll'f"min!l' rnjr"'1" or ("\'idr"llcr ~\nd lh",t he \\'.11:: l1Q~ j,'1.Tl'llil:1r ".\'lth Ih('

l\('Jltll("\..:~· ~tatut('~ r(':;1(il1l; III ,itlr;: (ri~l~, with the KC'!1(ul'b' rllil'.1

pf l'rimitw! proC'r:'d\1rf', or with :ltr ri~hL" l:11ar:lntl:'rd to n. d('r{'lld:lIIL

in ,,\ rrimin:1.1 (':'L~'~ \lndrr (!if' Fnur(N,'nth .. \\lll,)\drnc:Jt,

l'h('> d('p{)~ilion or ,,,\ ]:\Y 111:1/-:i-II:l I I.' in :\ f-:rl\llh C:lrullll.'1. r:1.3~ jlfl)­

\'i~k; ;\:1U(];.;r ililL~tr:.ttiol\ of the in;lticqll:ltl' iev.:iI 1);'rk(!T0Und oi

IIfll1i,\ \1 ~'I'r jlld'-.:(',<;:

'l~, Irk\: book.--; dtl YOl: 11:\\,[' :\J:\[Ji:-:lr:lte?"

.\f::.gISlr.'1.1C' :.rcr.f'I'J(jol1: 'II grit ;\ ~I:\ck ui \'IJI\lrne book .. irOUi tho m CtJ \l1'!hOIl"l' whl;'l1 1 .'!:ot th('> ,ipb, lipk n'd hook~ >< I'Q, W;ni.~ bo[)ks :nc r!Jn:-:(' '''ir, do YOH knuw LlH' n:JnH~ of :J-{iI(:ln ?!I rn ~hg1str:l.te ,Mcl..e\1uon: !I~o, sir,

--l "Q, Tell me Wli;lL your \11HlerstJIH1111b' of Illt.', C(1nc (II L'\\\'~ )~J

~yh;'l.t i5 cant,,:~inecl in the C()de of L:1W~1 :t.'.i yO\t unclcr-st-and ?" ~·bgisLr:\.tc i\lcLcndon: I/Well 1 IIC\'cr h:\\'c done :Ln)' rl!oviing

ill i~,

"Q. You II('\"N h;w{' n:1cl flCl'MiOIl to rrfcr to it,?" ;\fnr,-blmtc I\'Icl..<'mlon: "No. 1'ir," Dcpn~ilion oC rvr.,~i"itrntc Hob­

ert. ;..rr,unc.ion, Ol::t. 1.)1 1074, p, 110, F1'1'~rson y. lVCS~, Ciy. No. 74--1074 (oe ~hy 15, 107:;).

.~~ gr,ncrnlly l\'o!e, Gl Vn, L, Hr\·. i.LSi, }i,SG (l0iS); 1'<"0 l(' 1 10 lInn', Ci .... nigli!-s-Civ. Lib. L. Hc ... , 7:1D, HG-i.15 (l9i,lj): NIJtr" IiO W. 'In. L. ltc\'. 3H, 3',:l-:12!; (1\)G7); \;umm,·nL .. <1 "li.<s. L. J. ODO, )(X)'I-IOO3 (1073); Nole, 53 01'<'. L. Ho\,. ,11, ,23--430, ,137 11.

137 (1074),

" .

,,' .

.'~ ,

,'. ,

'.

NORTH V. RUSSELl, 343

328 STI:W AnT, J '/ d ls.scn t ing

. defendant will be nble to do little or nothing to p~vent llil unjust conviction. 1n II trilll before such II judg~, the constitutional right. to tho nssistl1llcC of counscl thus bCCOlI1CS [1, hollow rnoekerv-"It tC[l.,ing illusion like" munificent bC~\lest in ['. p"uper's will." Edwards v. Co.l­ifomia, 314 U. S. 160, lSG (3:lckwn, J., concurring).

D

II, t.his C~,'iC Judge l1ussell c1cuiccl a Inotion for trinl b.v .i ury, ,,It.haugh und~r ](cnt.lIcky hew ?\orth w~s ckarly cnl.iti('d [.() 0. jury trial upon request.. )'y. Con st. S 11; ](y. Hev. Stat.. Ann. ~~ 2,3.014. 2G.400 (1871). And "ft~r finding "'orlh ~uilt.!', Judge nus"'il proceecled to ill1pose [~ o~ntcllcC of illlprisonment, altho\lgh such a sentence \\'8S cleudy lInaut.ilOrlzcd by J\cnluckv bl\'. l\\,. HoI'. St[\.t. Ann. ~s 189 . .520 (2), IS(1.900 (10)(['.)

(1(171). But e,'Cll if it lI'ere not possible t.() dCll1on'lrntc in ~

. ptlrt.iclIbr Ctl.'C t.ho.L Li'r 1:<." Judge h[\.d been incoll1;)(,' lrllt or t.he tri~l egCl'giollsl), lInfnil', ) think t.h8t al(l(

trla.l bdorr 'J h,' ]11,]':" jl)jlt rl~<';)ll!s jn the <id('JiI):lllt~~ 11ll]Jris:nnll1Cllt. \'i()bt~'C; l!F> niH' Pro(cc>s (,ioIJ<.i[\ 0" ,'1\('

FO\lIiccnt,h :\IDcncimc:w.......1'IIc. Court litiS 110l'CI' ITqUII'l,d

[l showing of SJleeiGc or inclividualizoc1 prejudice when it \l'ltS tile procedure itself lktt viobt<,d due' prace" of luw. "[j\Jt times [C proceduro employed hy the St·~l" il1"olves such [I. probabilit.y lliut prejudice will result th"t it is deemed inherently lacking in due procc&3." Estes V. Tem" 381 U. S. 532,' 012-543. Sec Rideau Y.

Louisiana, 373 U. S, 723; Ifamilton V. ,11-0.0(1./1/(1, 3GS

U. S. 52. . . . , A trial juclge is "chargcd with the duty of lllSUrllIg tl1:'t

justice ill the broadest sense of th"t [.('I'm. IS n.chlOycd 111

every ~rimill[11 trial." Farctta Y. Cali/or,,'CI, ,122 F. S. 80G, 8.3D (BunoEn, C. J., dissenting). See Geders Y.

'.

.. 34-1 OCTOlJER TElUII, 1075

Sn:WAltT, J.1 dis..<;C'l1ting' ·127 U. S.

UlI1'{ca Stoic.>, 425 P. S. SO, SG-S7 .. Among the critical

fundions lh~t n kinJ judge must frcquenLly porform are the o.cccptance of ll. guilty plc!1, Henderson v. ,\forgan,

42G U. S. G37; the det{>rmin<ltioll of the volunk1.rincss of a confession, Jackson v. DeHno, 378 U. S. 3GS; the advis- . ing of !-he defendant of his tri:ll rights, Boykin v. A la­Dama, 39:i U. S. ns; und the ini;truction of n. jury, flol­len/weit v. Unitcd Slntcs, 3~6 U. S. G07, G12. A judge ignor:lllt 01 the la\\' is simply incn.pn.blt of ]lcrformin~

the.se functions. If he is n\\'n.n~ of his incornpetenec, ~uch a judge \\'ill'prrhnlJ' inst.incul'l'ly t·U!1l 10 t.lw pr('.,e­

~ulor for ndvlce :lnd direction: !3Ut such n rrn.cticc no more than compouncis tl~c process violn.tion. Sec III ru Murchison . . 'J.!Q U. S, 13:1. LlG.'

Thl' KCllt.ucky Comt of ,\pprais chrrracl<eri7.cd the kind or trinl thal took pll\~l' herc n.' 1\11 "absurdity." The tri:\l.

\ .T\ld~(: ll\\~!!l,'ll (unrecil,ld lh:ll lw rclil'rJ on llll.: cIty ;lttOrllC.i' rr'lr kJ.::.'lJ :\lh'!'~C::

"q PriM to )'i"J\\r :"I.fil'"i:)ilnflIll :L~ Cit.', .fllug(' .. kHl yo\\ h:\J :"1.11)' jlte\'I'\u!-; Ir'c;:l1 c:>:rt'rjr>ncc \)i :tIl." kind?"

Judc::(' nU"-''l'II: ":\"(1, i-ir ,,(~ 1]:1.\'C' ;,ou )\:\(i !Iny 11'!!~: tr:ll!lin~ r.l :11'.)' kir\d ;-il1~'C' y~I\lr

,", i'i"'" Ii n! m c'n t ? I' Jud..:'I' J\u:-,,'.:cll: "\\'('il l lhr ot~l:,. Ibillg I (',"\1\ 5:1) I if 1 h:~\'iJ 1\1\)

m tlnul)t, 1 j\J"it C011~ul~ \\'ith the ('ll,\' h:, .. -ycr

I'Q. Anci \\ll~'n ~'Ol\ !Tl'l'\\'r. adi'icc from th~ cil:' ~dtorn("YI dCI

yuu iollow til:\!. nd\,ll'["?" ttl J\\[\g-f' r:.uS';cu: "Yu, .5ir IJ

~ ~C'l\ !11E"'() DC'po.s.d Ion oi .\hglstr:ltc Holx rt McLLn.don, Oct. IS, 19~4, f). 1 J (j in F6cr.sOil \'. Wcst, Civ. ~() i4-107'~, (SC f.·hy 15,

p 1815) (s~,'illg Ihnt in ('\,\'11' o[ request [or jl\(')' tchl he "would C<Jrlll~ to J'dr, GC'or~r ~L\lck<'y [the: county attorney] :J.nd lind

. out. \\"h~t I 11:u1 to dn"), 0-11' "~l'C :\ott:,,J3l~r('.L Hr.\'. 411,·f-,"3() (J0ii); Nnt.c,Gl Va,L.Hl'Y.

H:i'\j 11GU~14iO, n. ('j (1075); ~()tC, 10 Ibn'. Civ. Hi!;htu-Civ, ......!:) I.,IU. L. H~v. 739 1 755 (1075).

. ,',

.... . ~'. , ;

NORTH v. nUSSELL'

328 . STBwAnT, J" disscntinb:

in my view, W[lS sllch [1n flbsurdity us to eons~i~uk a gross dcnial of due process of In\\'.'

II

Tlie Court seems to say that these constitutionul defi­ciencies cnn all be swept under the rug find forbottcn becau,c the convicted defendnnt mft\' hnve [l triul ric MUO

..££0.r.e..<1 (ilwliBed JUcl~c. I cannot '\.i!IW. In Ward v. Village of Monroeville, {()Q U. S. 57. the

COllrt mn.clc elcn.r thot "the ,C;tat{>'s trial court· proredure [cannot) be deemed constitutioll[\lIy [1cecptable simply becnu~ thc Stat-c c\'cntu:c1ly 00'cr5 :e defendant :en im­pn,rtinl udjuC\imtion. Petitioner is cntitled to ", "0

onrl tlctn.chrel jllclgc in I.c first. ins(o.nc['." /,i .. at· Gl-6~. ~,!cc ,~lso CuI/all Y. 1V,ls!) 11-, 1:27 U. S. ,)-10 I ri!,ht. te, t.riul 1.l.'· ,iur.v is right to " .iury in Arst in'10nc[').

Th(.' Court wou1d clistin(:ui'iJ ill(' Wenl en.<e as "eli­rcC't"cl at. the IlcccI fa]' incll'J)(·ndcnt .. lJ('utral. "nd ,iclacil<,d .iuc\[l11C'l'lt. tlot "t icog,,1 tmining." ..tl/lr. al :':l7. But SUI'I,1\, there call be nO nll'nllingful constJi.llliol1:\i clili'cr­"IICC between [\ tri,,1 t.hal is flll1cial11cntl'J1v ullf,~i]' hCl'au"" oi lll(, jucl)!('IS po.'-:sibk bi(\~, nnd 011(, th:l\. is [undtlllli'lll:li]y.

llnf:lll' bl'ccUSG of the j\ldgl'." ignom!ll'c of thl~ law.' -r. T\H~ [.(','ucilv of l.'1\\'\'cn; or 10r:."I.lk tr~ilH'd l~I~'Ol1~ in l~jr.'d .,\,'.':l:$

('[1,ll]wl. t"::'rV(" 'tg j\l:lliy In:'!!." '\:\1t'11 ;'1.<: tln~. ! l:1n, 11.1 r.'!C (':li~' :'-'::I1nj)\c>. h:t.~ m:l1l:\gr:d to (\('\'\<:1' :1. rowIIIUlI011:lJi:' :\dl"Il:~1 ~\·.::l~111 ('Yell t.hough 1nrbc J')ortl0n~ Dr lbC', ~l;\ll' ;\I'\, Sp~H;l'ly rC1p~l­

l~ll'cl :uld 13 01 its 29 N\llltl<'$ hn.\'C' two or [{'wcr l.i\\ycr:;:. S~ Cl<lli II011:5C' Dill No.1, 197.1 Fir~t "l""2C'in\ S('~i(1l1J .1IllC"\\Cung 1,11,111:

Code Ann. § 78-5-"1. o~c ,,"Ilcrnlly Note, 10 lbrv. Civ. lllghl.<;-"" Cil' LIb. L. Rev. 7.1!l, 763-767 (1075). ~

t Tho' Co\1rt's rc!J:tncc on Collo~ v. J{cnlucky, 407 1}. 3, 10·1, is mbpbccd, Tho quc.!'tinn in. CoUrn w,\,...~ !lot wln'lllor 11 I.rhl of the kind ch:dl('ngcd here' i'i C'onst.itutiol1:1l1,\· ,-:1\id, bUI ~hc quite clin'("f"{'i1[

qticstirJH whether !1. grc'ntc-r "'nt(,I\~'C c:'Ln b~ illlji'Y''\l Oil ~ ddrnllint iolio,,:ing a tri:l.l d~ novo WilJ10U(, v)olll.t.i.ng Nvnh C'1~t,-,1I'.'J ?, ]'ceree,

30G U. S. ill,

) ':r ..

OCTOBF..R TERM; 1975

&rrw},rrr, J., di.~cntlnl; mu.s.

And the Courl's suggeslion lhnt n defendnnt hnled be­fore n In.)' jud"e can prolect his conslit.ulionn.1 right<; by simply pleading guilty and immediately s<:cking a trial de 1I0e'0 is wholly unpl'!"su;.sivc. First, t.his argumenl. as­

SUmes \\'ithollt n.ny factual SUppOI-t that the defendant will be inforlllccl of his right lc .~ trial ric 'wvo.' Second. the procedllrc would still lICCes.,itatc Illultiplo court a/!­pCllralH'Cs. ,,[ the cost of both delay and an ine!'caseU financial burden fa!' alt{)rIlCYs' fcc's ancl court cosls. TI,ird, ~lIch a praceiec \\'ould turn what should be [\ sol­emn court procecdinl" .ICc lJoykin v. Alabama. 3D5 U. S. ~:)S. ill to nothint; nlQre than a sh"m. Tn short. I Wilnot c.('c('p( Ll1l' suggestioll th.1l. ," n Jlrc\'('~uisite (0 n consli­tll(lonnll:' [:lir I.rilli. a ridcllrlnllt !1lust stl1nd lip in opell court IIlId inform a juclr;c that he is guilty whcn in [act lie bcl,CI'CS thnL lie is not·.

;\t I1llnll)'rneci(' ill 121G Eillg John pledged 10 hiS I)IIIU'" thnt IIC' \\'ould "lIl)t make nil,' Jusl·ici:lric.'. COil. ~t:lbl(l~, ,;:":hr'l"I1rf', Or B:\iliHs., (~:\rnJ1(,jllg of su(·h 8!' kiln\\, tiH' !.o\\" o[ ti,e blld ~1 :Ii~Il" C'.11 t:1 4·). Tod,,),. Ilwn' thl1l1 750 )'cnrs Ink!". till' COUl'e lwvcs that. proll1-i,;:;l~ ull~rpt,

I rc,pcctfully dissent.

"'rh~ rl'l'()rrl illrii{';ltC.5' Ih,1! \'orrh w:\," (~kcn 10 j~lil jmiO('di,1!~J~' m :dtrl" SC:ltCIl-:j111! :1110 ub{;;illC'd hi:: fn:cdom Old\' whc)) the ~\:'dc ><: !Iall(';\~ ("orpu.:' COllr1 011 1 h0 folln\\'illg d:1,\' l"I/!Ill'd :\ \'.'r)t ordering :r: hi,~ n'!c:l:'(', It. is klrdl~' ld,('l~' fhat Xorth would 11:1\'(' SI){'Jlt the - llit.:ht ill j:lil it' he h:1d l)l.'l'J) lold thnt he could ;J.\'oict j:d[ sHl1ply by ~ n,.o::bn!; Jar tl. trin! de novo, --i The" Courl :lIm :-;(,,,,1('5 il.~ n~~\lmptiol1 th.'ll Krnlucky polic(' ('ourt

jud.£!n.: will .vb·i"ie" dc[c!1d:1Jlf . .-: o[ tlll.,jl" n:;ht 10 coun~cl and that l> ~'()\1/1.;:r'l will nrkit::C' their C'liC'!1t~ uf tllrlr rif!ht 10 ! .. trial de 1101.·'0,

,c;:.cr:' I'llll~, :I.t. :),1.). Tlli~ :).<':.,,;ulllp!it."fl i" :11"'0 d~\'oid o( ~\IPJlnrl in

I llie prl'<cnt -rccord. Allho\l~1i J\ld~l' n",,-<,11 slnl"d thai il IVns CJ1 ~rllhc sto.ll<i:ln.1 prorcdurcl!' to (l(h'i.-;c d(!fctlcbnf.'1 (I( lh<"ir rlg-hl to }.I ~-{~un.')C'I' hl! W(I.'j unwil!illJ:; to ~l.';l.c th~t Ill' :uh·i."cd :\forlh ~r thi:i (j rrJ;hl, :tJJd Norlh unrc.scn'ooly t~·.3ti1i('d LlHl.t be was not so a.c1I'l.~td,

f ~l.

,. -- ,~.

~.' . , : ... ::.

" ,~

)

" .. ELROD v. BUR.NS .. 34i

ELROD, SHERIFF, ET AL. v. 'BURJ'iS E1' AL.

CER'rJOn.<nI TO TIIl: UNITE)) S'r ATCS me; n1' OF Al'PC U .. '> Fan THE St:\'I~NTH CIlI.CUrr

00, 7'1-1520, Ar~ucd April 19, 19iG--DccicJcd JUlie :?S, 19i6

n('~pollrlC'n[~1 Hepublic.:JJls who .'\fC llon~ci\'i!-~rr\'icr ('tnJ1ln~'(''f':1 of th~ CryJk C0I!nt\', 111., ShcnIT',s Offirc, brlltl~ht thi.~ ,l:ll1L :\.': ,:\ cl:lss :\rtion lor dC'cbr:ttory, injuncti .... e, :::lI1d ol1)('r rclif'r ,"J!;,"JiIl.c:t p('titi()nr~, mcJuding LIle 11("\'1~' eicc-lf'd ,ShrriIT, r\ Dr!l'1oC:f.1t , nnu COl! !1 h.' DrnllH'f;>'\'lr arr.-:l.niz~i.lioIl"', :1llrg'I!l~ tllaL in vjo1nti~)n Cli tIle Fir:::! ~\lld rotlrtecllth AnWnr:lmC'llt.<:: :tnt! Y;lriout: .s1c..(IIIf;.':. in­cl\ldlflS- (11(' Ci\11 n q.;:h!s .\ cL f)f 1 ~71. rc~ pf)ll~ ('nl.:: \\'('rc f-j'i<;.rhH~rd or (111 111(' en"e of one rr"]1Clnd,'nl I !l1r(,:ltr!1M \',1th di.=t"ll:Lr~l: [nr­Ihr- ~ok rC':1!,r)l\ th.1( th('~' wrr(' 110t nlfili:\!rd \yith or <':JYl!I~ort.:'d by thl: Drmol'r:ltir P.1riy. Finding' lh.'\t r("'.3pondt·!l(s 11<1.rI f:lileJ lo sho\\' irrrpnr,1blc Injllr,l', Ole Dl:"tnrt. Court d811kd llirir motloll

for (L pr<.lil11i!l.,r~' lnjunr.'tioll :llld \d(irnal(1I~' di~'mi~~('d IllC'ir ('om­pbillt. rllr i.1ilurr to ~tnlC a {·iJ:m \lpnj~ \·.lli1'·11 r'f'llc[ "mild h'2

'.!I'.lnv,d T1H\ C01]rt of :\;ljlJO;tI:: j'r·\·f'r .. ""I, :1!1d r,'m;illdl'(! wi: h ,):-lril('\i'll1~ to rntcr :lj)pfl>pn:ll(' ri'I'hmlJl:lf~' !l1,lI!:,,{'~l\[\ :-['\11-1,

fl!l'd: TIIC l\lde~lIrnt i~ ;Jllirll1l:d. PJl. ;:;.jj-:)i·1: :3i'i-3~r,.

5(18 F.:2<1 1133, ajllti;1Cd.

~rH, ,]unlcE P,IIE:\:-';AX. ,ioillrd by :'Irt, J~;~nICF: I\'IIln: :1;l\1 ~rH, JI,..'5TJCl: \L\ftS1HLL, ('c)Jlchldcd thtll:

1. "l'lther ;.he poJilic31.qilC<tioll uoctrin, 1I0r the '<'r,,"linn.o(· PO\I,'('f:-, cioctrinr 1)\.'1\':C'.0) tIll:" r,:lCC IIH1ppropri:'dI~ for judkL11 n~o­!\llillll. ~I!l("e, lllt'.'r fllia, n~i(jwr noCI r'me npp1't('~ to l.he fcdcml jlldici.lr\"~ r('I.'lliu)l~hip t'.'l !he 81:1 (C-,;;. J1 11 , :l51-:~53.

~. Th'c- pnl('liC'r or p:l(fOnn~r di.:;:mi.;;;.<=:lls \'iolntts thr Fii;::\. j,nd fuurt(,(,llth :\mC'numrnl.s) find rC~PO!ld('nt.5 thus .stntrd n. '.n!ld

cin.lm for relief. Pp,355-3i.] (:\) Pn.tton.'1ge di~llJi.~~al'i .<:cI'C'I"l'ly rC.5tri('~ poliJie.11 brlie{

nnd n,,·~.m\i:1I·1(Hlr wllirh comtitutC' the corr or tho~ activities prolrclrd b,\' th{' FIr,;:1 Amc!;dll1l'llt.) :1nu gon:'rnmrlii nw.)' Dot, H'ilho\Jt. ~r.rio\l~I.\.-' inllibilin,(!' Fir.t:t "\mcmJJnC'nL tighls, farce r~ pub­liG ('mpJnyc~ to rcJinC]ui.~h Ilis ri~IiL to political n.sso('i;J.tion .'lS llie pri('c nf j){lJrl'1!1~ i. P\IOJiC Job, Perry v. Sindamonl!, ,IDS V, S, 583; ,A"(t!Jishir11l \'. /Juarcl oj Rr.oclIls j 385 U I S. 530. rp, 355-3GO,

. '

(

TREIMAN v. STATE EX REi.. MINER CI t.e- a. Fb ... 3-D So.2d B I!J

]\fonroe W. TREDIAN, as Judge of the County Court of Hernando County.

Florida, AppeJbnt,

v.

The STATE of Florida ex reI. Thomas Hamilton :>IINER, Jr~ et

aI, Appellees.

No. 49061.

Supreme Court of Florida.

Feb. 10, 1977.

Rehearing Denied April 7, 1977.

Misdemeanor defendants moved to have nonlawyer county judge recuse or dis­qualify himself. After motions were deni~tl defendants filed petition for \vrit of prohi­bition. The Circuit Court, Hernando Coun­ty, John 'V. Booth, J .• issued writ, and the county judge appealed. The Supreme Court, Sundberg. J., held that constitutional provision that county judgc9- in ~ county having a population of less than 40,C{)O are not required to be memb€rs of the Florida bar doe9 not deny equal protection and that a nonlawyer county judge who compleles. a nonlawyer county judge training program at the university of Florida, including the

11arn;r.J;I'!'I fur IIH'lll:\I ;lll;..:ui-.1L wldlll r:w_'- Ul.!

;J,\·;.i!;lhlr- ill :1 Jillll-r Dlltr-:Wr 1:l\V .... \ll~, :-:o.:e

!1;rl'\I'Y ,._ ,"'·flU!/tJH. I .•. ...:(J.~.f I ...... ..: ! 1-'1.1.

1:;,')'H,

,

EXHIBI1B

.52-1

82[) Fla. 3-13 SOUTHERN REPORTER, 2d SERIES

examination to test proficiency, can con:;,ti­tutianall)' sentence a defendant to a prison

. term for commission of a misdemeanor, that instant decision operates pro~pecti ...... el'y and that an accused can knowingly and voluntarily waive his right to a trial before a hw~trained judge.

Order affirmed.

O\-erton, C. J. t concurred with 30:1 opm­ion in which Adkins, J., joined.

Ro~rts. Retired, dissented \vith opin-IOn.

1. Constitutional Law =225(1)

Constitutional provision th3.t .a county judge in a county having a pop-uhlion of 40,000 or less is nol required to be a mem­ber of the Florida bar does not deny equal protection to those who live in smaller counties and whose courts may be p::--esided over by nonlawyer judges. \Vest's F.S.A. § 34.021; West's F.S.A.Con't. art. 5, § 20 (c)(ll).

2. Constitutional Law =25B(8) Judges e:::::.4

A judge v,,'ho is ignorant of the law cannot afford due process to an individual facing imprisonment on co!'wiction; how­ever, a judge who makes such a determIna­tion need not necessarily be a member of the state bar. 'Vest's F.S.A.Const. art. 5, § 8.

3. Judges =4 A nonlawyer county judge who COr.l­

pletcs the nonlawyer county judge training program at the University of Florida, in­cluding the examination to test proficiency, can constitutionally sentence a Jefendant to a prison term for commission of a misde­me~nor. West's F.S A. §§ 34.021, 775.-082(4); West's F.S.A.Const. art. 5, § 20(0) (11).

4. Courts =1000) Holding thal nonbwyer county judges

\o,.'ho properly complete judgeship training program at University of FloriJJ. can pre­Side over criminal misdemeanor cases ~!ld

C2n sentence a defenda.nt to a pri:-.un oper­ates prospectively only. \Vest's F.S.A. §§ 34.021, 775.082(4); West's F.S.A.Con3L art. 5, § 20(c)(11).

5. Constitulional Law =268(8)

Judges =4

Use of recently elected nor..lawyer county judges in crim:nal proceedin(."S de­pends. on lheir bf.:ing property trained and educated in the la'.>,:; completion by newly elected nonlawyer county judges of a l:-ain­iog program si milar to that cur-rently of­fered hy Uni ..... ersiiy of Florina is constitu­tionally nect::!ssary ior t:1crn to be able to discharge their crlminal constitutional duties; anything les$ fails lo sat.isfy due process. West"s F.S.A. §§ 34.021, 775.-082(4); West's F.S.A.Const. art. 5, § 20 (c)(l1).

6_ Criminal Law e=]05

A county judge not trained in the law may prc:side. over a cri~inal misder.1eanor trial where the accused makes a knowing a:1d voluntary \vaiver of his right to a trial presided over by a la\".'-trained judge. West's F.S.A. §§ 34.021, 775.082(4); West's F.S.A.Con,t. art.5, § 20(c)(11).

Robert L. Shevin, Atty. Gen., Charle. Corces, Jr, and Donna H. Stinson, }~s~.

Attys. Gen. and Fletchr N. Baldwin, Jr., Gain~sville. for ap?ellant.

Frank McClung of \!cClung & Under­wood, BrooksviIle, for 2.i)pellees.

Jerry Oxner of Reynolds & Marchbanks, Baea Raton, for Cor.ference of County Court Judges of Florida, a::nicus curi::.e.

SUNDBERG, Justice.

Apptllanl was at the- tim~ these proceed­ings were commenced a nonlawyer county judge in Hernando Counly. Appellees. re­lato:-s below, ' ... ·ere arrpstl.:'d o_n misdemeanor charges \vhich couhl f(:o~ull in the penalty of imprisonment upon COr!'I.·lctlOn. See Sec­tiuns 316.028, .029, .061, and 856.011, Flori.la Statutes. Dden(!:J.ni3 'I.,,'ai\'ed the speedy trial rule. JuJge Trciman \vas the presid.­ing judge in each C;L':;'.2-. anrl in each case appelkes' a tLorney rnon:d to recuse or dis­qualify him. The motions were denied. Thereupon appe;;ees fited a petition for writ of prohibition in the f[fth J u(licial

E X HI 5

"

i> ,

TREDIAN v. STATE EX HEL. ~!l!'ER Fla. 821 Clle ... ,., n .. , J-JJ SO.2.1S19

Circuit in afld for Hernando County. On shall not be required to be a member of October 29, 1975, the petition was f,rranted the bar of Florid:.L" and the writ issue-d. In its order the circuil Cf Seclion 3.1.021, Florida St3tUtcs (EI7,'j). court concluded:

"The ruling of the United Sbte. Su­preme CDurt in [Gideon 1/.] ~rajnwright,

[3.2 U.S. 335, 8.1 S.Ct. 792, 9 L.Ed.2d 799 (1963)) and Argersinger [v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). !,'lvlng a defendant who is charged \ .. ·ith a criminal offense the right to an attorney logically and necessarily includes the right that such defendanl~s (,3-~ be presided over by a judge pos.sess­ing at least the same legal qualific3tions of the attorney representing the State and defe-mlant."

Judge Treiman appealed from this judg­ment to the S8cond District Court of Ap­peal, \,:hich, on app€!lant's motion, transfer­red the cause to this Court. \Ve have juris­diction under Article V I Section 3(bXlt Florida Constitution.

I n Florida there are three types of non­lawyer count)' judges l First, there are those who were "gra.ndfathered in" when the people of this State adopted a substan­tial revision to Article V of our Constitution in 1972. Article V, Section 20(d)(7t reads:

"(d) When this article become. effec­tive:

(7) County judges of existing county judge's courts :!.nd justices of the peace and magistrates' court who are not mern~ bers of har of Florida shall be eligible to seek election as county court judges of their respective counties."

A second group, covered under Article V, Section 20(c)(11), consists 01 jud"e, who hold office in counties of fewer than 40,000 people:

"(c) After this article becomes effec­tive, and until changcd hy general law consistent with sections 1 through 19 of this article:

'(11) A coun ty COllrt j uc\g-c in any coun­ty h:lving- a pOJlulalion of 40,000 or less according to the last oecennial census,

Ftnally there arc, of course, some nonlaw­yer county judges who hold their office3 by virtue of both constitutional provisions. The appellant in this c;.t.;;e \ .... as among them.

[I) AppelleeS ar"ue that the ·:0,000 pop­ulation provisioIl deni~s ellual protection of the- ]a\VS to those- who live in srr.:::dler coun~ ties whose county courts may be presided over by nonlawyer junges. However, our reading of North L Ru:;scJ/J 4~ U.S. 32S, 96 S Ct. 2.09, 49 L.Ed.2d 534 (1976). convinces us that such a classification passes constitu­CDnal muster. There the defendant was convic~ed of driving "...·hile intoxicated by a noolawyer judge of the Lynch. Ky .• City Poiice Courl. The Supreme Court oescribed the Kentucky statutory scheme as follows:

"Section 156 of the Kentucky Constitu­tion requires cities to Lc classifieo accord­ing to popula.tion size. There arc six classes of cities: fifth-class cities have a population of between 1,000 and 3,000; 5L xth-clas3 cities ha..-e a population of less than 1,000. Lynch ,is a fifth-class city_

A police judge in fifth- and sixth-class cities must by statute b: a voter and resident of the city for at least one year and be bonded. [TJhe police judge in such cities need not be a lawyer. Police judges in first-class cities, which have populations over 100,000, must have the same qualifications as cir­cuit judges \vho mu::;t he at least 35 years of age, a citizen of Kentucky. a. l\vo-year resident of the district and a practicing attorney for eight years. Po­lice court judges h;:lve terms of four yC'ars. In fourth-. nrth-, or sixth-cbs:; citie,:; police jUdgl!S m:ly be either appoint­C!d or elected.

"Poli{'t! courts have jurisdiction, {'oncur­rent with circuit courts, of pl!nat and misdemeanor cases punishahlc by a fine of not more th,~i1 $.')00 ami/or imprison­ment of not more th:\n 12 months.

I. ··Unles.s otherwise pnn1ld!O'd by gent"r.:11 1.:1"",, a county Cot:rl judge must bl" ~ member of the

bar of Florida." Art. V. S S. FI~LCrmsL

E X H I BIT B -"

,.,0, .... '"

52~

(

822 Fla. 3H SOUTHER!\" REPORTER, 2d SERIES

Kentucky has a two-tier misdemeanor court system. An app-eal of right is pro­vided from the decision of a police judge to the circuit court \vhere all judges 3.re la\'\"yers, and in that court a jury trial de no].'o may be had. ." (Footnote3 omitted) ld. at 271O-1l.

The Court bter rejected a contention lhat such a system ...-iolates the constitutional guarantee of equal protection. reasonir.g that "all ptople within a given city and within cities of the same size are treated equally." ld. at 2714. With the 2pphcsble standard having been thus enunciated, \ve have no difficulty concluding that th~ clivi· sian of county courts into two cla5ses effec­tuated by Section 34.021, Florida Statutes, and Article V, Section 20(c)(11), Florida Constitution, does not violate the equal pre­tection guarantee of the United States Con~ stitution.

The critical question in this case is. wheth~ er a nonlawyer county judge can afford due process of la\v to a defendant charged ,,,rith a crime which leads to possible lmprison~

ment on conviction. North v. Russell, su­pra, is less than decisive in resolving this issue because there the Court laid great stress on the availability, at the requtst of the defendant, of a second, de no'r-'o trial before a lawyer judge--a feature \'rhich our system lacks.

Nor is the experience of other states. de­terminative of the issue before us. 'Vhile the language of other state appellate court decisions in this area can pro"ide llS \"ith some guidance in deciding the merits of the instant cause, the wide variety in stat.e court systems render such determinations mildly persuasive at best. Several stJ.te courts have upheld the constitutionality of using nonlawyer judges to try cert;..lin cbsses of cases.. E. g. CroL'eh 'v. Ju.stice of Peace Court, 7 Ariz.App. ,160, 440 P.2d 1000 (1968); City of Decatur \ .. Kush mer, -13 1ll.2d 334, 253 N.E.2tl 425 (1969), Xorth l".

Russell, 516 S.W.2<1 103 (Ky.1974); Ditty,·. Hampton, 490 S.W.2d 772 (Ky.19i3).

In contrast, the California Supreme Court has held that (lue proces.::-. requires that de-' fcndants be cOlwictl:d and sentencl:d hy

la-v..'ycr judges even III the tuwe~t t'ourt~

("just ice courts") in cou r. ties or d;::..:.tricL, v. ith 40,000 or f L;wer residents, That {'ourt concludeu:

Hlt has been .:;uggested th~t our holding could cause serious pra:ctical problems in .... iew of the asserted scarcity of attorney judges in certain rural 3.[£!as throughout this state. \\'e recognize th;:.t there wiil be prohlems and have soug-ht to minimize them to the extent constitutionally possi­ble. \Ve do not alro1ish the existing- sys­tem permitting the USE: ~f non-attorney judges in all matters within the justice court jurisdiction, Such judges may con~ tinue to function in civil czses., and tn criminal C2.Se.9 not involvinz potential jail sentences. Moreover, even in criminal cases \ .... here a jail sentence- may b:2 im~

posed, the non-attorney judge may {"ct so long <lS defendant or 'his coumel \v:li ...... es the due process right to have the pruceed­ings presided over by an attorney judge. Such right may be voluntarily relin­quished jest as the right ~o counsel may be relinquished. In the event defendant or his counsel fails to so stipulate and no attorney judges are available in the dis­trict, then eithe.r the cause could be tr::m,,­rerred to another judicial di~:d('t in the same county (see Pen.Code, § 1035), or the Judicial Council could assign an attor­ne}' judge from another area to hear the matter."

Gordon v. JU~licc Court, 12 C;J.1.~d :r~:3, 115 C,.I.Rptr. 632, 639, 525 P.2d 72, 79 (1974), ccrt. dellied, 420 U.S. 9:18, 95 S.Cl. ll·iS, 43 L.Etl.2d 415 (1975). Yet this clecision is not dispositive of our ca5e bccLLuse in California justice court judgl.:os mLlst either (l) be n. member of the Lar or (2) have p;l.5secl a qualifying cx::!r.linatlon prescribed by the Judicial Councilor (3) ha ..... e been an incum­bent in such court or a predecessor CClurt. at the time of the 19.50 juuici:ll system rcorg3.~ ni2.J.tion and have rctain("d the position con­tir,uously. 115 Cal.Rplr. at G3-1, 52') P.Zd at j<l. The California court noted that, llnder the second procedure

"a b)'man \vho is not. an incumhcnt j:lS~ tiCl: court judRc ITl;1Y qualify as a C,lnIIL-

EXHJBJTB

21

~-"- .'1 ._~~=:::t

52'1

.'

TflEIMAN , .. STATE EX REL MINER Fla. 82:3 CIL~ 01'. F~a_. 343 So;'d 3 J 9

dale for election to that court by p;:J.ssing the three-hour examination hriven by the Judicial Council. \Ve have scrutinized the most recent Judicial Council examina­tion and, although it extends over a wide area of the law, the examination is far less rigorous than the two-and-one-h::lIf uays Slale Bar examination required of one seeking to b€come an attorney. "\Ve also nole the absence of any reCJuirel7lent of college or 13w school education in order to qualify a.'3 a justice court judge.". (Footnote omitted) 115 CaLRptr. at 636, 525 P.2d at 76.

As will be seen, such a statement \vould be inaccurate with respect to the vast majority of our nonattorney county judges.

[2] Appellees read the decisions of the United States Supreme Court in Gideon \-'. Wainw6ght~ SUp1.l, and ArJ;ersinger 1!.

IIamJjn, supra, as necessarily leauing to the conclusion that only a lawyer judge can afford a criminal defendant due process of Jaw when incarceration is a po~sible result. The expertise of the prote5sionai attorney is wasted, they say, ii his or her forensic ef­forts are directed at a judge who has no more educational background to absorb 2.no

appreciate such argument than any specta­tor in the courtroom gallery. As the Court recogn;zed in Argersinger, legal and con:,li­tutional quest.ions involved in a case actual­Jy leading to imprisonment for only a brief period (i. C., a misdemeanor pros~cution) are frequently no less complex than those raised in the trial of a major crime. \Ve agr02e with appell-ees, that; after Argersing­er~ it is clear that a judge who is ignorant of the Jaw cannot afford due proce::;s of law to an inriividual facing imprisonment upon conviction. \Ve do not agree that a judg'f! who m;lkes such a determination must nec­essarily be a member of The Florida Bar. Cf. Shadwick I'. City of Tampa, 407 U.S.

2. As hest we can dIscern, cven the dISsenting justIces In North l'. Rus5el!. supra. would fInd that the Floritla program we hJ.ve descrihed passes constitution.]l muster. As pointed out in the dlssenLlng opinion of Mr. JustIce Stew­art:

"The Juuge at Nonh's o;tate h<.Lbeas corpus hearing concluded:

345, 9" S.Cl 2119, 32 L.Sd.2d 783 (1972). The peopJe of this state through r3.tific:.:!.tion of the revision to Article V of the Consti'..u­t10n in 1972 expressed tlle.ir consent to a judicial system with limited utilization of non!:l'.l,·yer count.v judgeS as explained above. It is not our function to thwart this decision oy the pe.ople, provided l:'103 consti­tutional guarantee of due process of hlw is not abridged.

[3-5J At the behest of this Court, in August, 1974, a Non-L:::l, .. ·yer County JlJ(lge Training Prog-.-am was begun at the Hol-13nd Law Center on the C2mpL:S of the University of Florida, the sole purr10se of which was to provide suit~~ble training to allow nonlawyer county judges to be ce:-ti­fied to sit only as county judges in those counties with over 40,000 population. Ap­pelbnt, who is participating in th:s pro-· gram, and amicus curiae provideci brief in­form;:.tion concerning the scope of this pro­gTam in appendices to their briefs. They argue that such special training qu:.t!ifies a nonbwyer judge to hear misdemeanor cases punishable by imprisonment. Pursuant to our Octob~r 14, 1976, order to supplement the record in this cause, Professor James R, PJcrce, the director of the t..:on-Lawj e\ County Judge Training Progy~Hn, has fur­nished us with material describing in detail the IJrogram's curr:culurn; hours of study, including duration of the COurse; and test­ing methods and gr ... lding. Professor Pierce's statement and a summar), of the curriculum are rcproduceJ <lj. 2.ppendices A aDd B hereto and we .see no point in discuss­ing these materials in detail herein. Based on careful scrutiny of the materials syno(}­sized in the appt~ndicL'5, we conc.:llHle that :.t

nonlawyer county judge who complcles the l'{on-Lawycr County Judge Tr.lining- Pro­.gTam at the University of Florida can con­stitutionally 2 sentence a defendant to a

.. 'I rhink the f<lct has. bet'n est.J.bllshed lh,lt [Judge Russ£:ll isl not a lawyer. he doesn't know ~ny Jaw. Ile h:1sn"t studied any 13w: Judge Russell les{lfit'd th.ll he h;1d only a high schoof educ.ltion. He hLld nt'"\"cr re­ceived an)' [raining concerning hIS duLi~s as a lay Judge. This is. 1101 a C3se, therefore. in· VO[Vlflg.a lay ju(lge who h:lS rcC("ivl"d the kind

E X H I BIT -8

,~ ::J: ....... v

5.1£.

824 FI~. 3.\3 SOUTHERN REPOItTER, 2d SEflJES

prison term for commission of a. misd~­

meanor as specified in Section 775.082(4), Florida Statutes.l

The program, \·,;hich began in August, 1974, is designed to graduate its cb.5:3 of nonla',"'jer judges on June 30, 1977. It is possible that the progT'..lm can be acceler:Ll­ed without sacrificing its scope and content. We hold th3t those judges who properly complete the educational progr3m, includ­ing examlnatton3 to test their proficiency. may pr~slde over criminal misdemeanor cases as described above. OUf ruling oper­ates prospective1y only, following the date this opinion becomes fmaL The use of recently elected nonlawyer county judges in crimin::l.l proceedings depends upon their be­ing properly trained and educated in the law. Toe completion by the ne\vly elected nonlawyer county judges of a training pro­gram similar to the curr>:'nt program is con­stltutioTIJ.lly necessary for them to be able to discharge their crimi!1al constitutional duties. Anything less fall.s to meet our construction of relevant due proces9 safe­guards.

[6] Of COUr8e, our holding here doe.9 not preclude a county judge not trained in law from presiding over a criminal misdemean­or trial w-here the accused makes a knowing and voluntary waiver of his right to a trial presided over by a Jaw trained judge. See Gordon v. Justice Court, supra.

Accordingly, since at the time appellees came before his court, Judge Treiman had not completed the !'-Jon-Lawyer County Judges Training Program, the order of the circuit court gr.:1nting the 'vr:t of prohibi­tion is hereby affirmed.

of speCial tr,,[ning that several States ~ppaT­f'nLly proyid~. See ante. at 2711-2712 n. 4." (Rdt'rence- to ffi.lJorlLy opinion listmg Flori· d:!. among m~ny otht'r states, ;).s ha\'ln~ a "m~ntL:ltory training progr.J.m" for nonlawyt'r

judges.J 95 S.Ct. at 2715.

3. § 7750..,2(4). Fl:l Stat., reads

ADKINS, HATCHETT,

BOYD, ENGLAND JJ., concur.

and

OVERTON, C. J., concurs with an OP-Ht­

ion, v>'ith which ADKINS, J., COnCUiJ.

ROBERTS (Retired), J., diSSEnts wilh an opinion.

APPENDIX A

1. INTRODUCTION

The Court on October 1·1, 1976 entered its­order requesting, in essence, a wmplete re­port on the structure :='.na conduct of \he ~ on~Lawyer Coun ty Judge Training Pro-­gram. To pbce the data requC!sted in the proper per:spectivC!, it is first adv~3able to provide a brief description of the origin:3 of the program and its overall formaL

The program commenced under the 2'JS­

pices of the Univt2rsity of Florida Di ..... ;sion of Cont~nuing Education in cooperation with the Universi~y of Florida Co!!~ge of Law on August 15J 1974 ".ith 25 Ptrtici~ pants all of whom -~""'ere the non-1awyer county judges. who intended to continue in offlce past their then pn~'::>'~nt term. Subse­quentlY, one judge was witr.drawn from the program and two recently e:eeted non~law­yer county judges. were added. The current number of judges participating is 26. The program originally W?~S structured into t".'o institutes. per year. The summer institute in'~'olved a resident period of instn.:.ction of four weeks including \veekends at the Uni­versity of Florida College of Law. All courses commenced in this summer institute were concluded during the course of the institute. The r~mainder of the year was

"(4) A per-sfJn who bas be: .. n convict~d of a d'.':sign;Jted TTHSUt'I-:1o::'Jno. r:' . .:J.Y be senknced

as follows' (3) For 3 misd-:;ne;,nor of the first u~·

grl;'C'. by a (kfl!~iLe term of imprisol1m!!'r:t not exceeding 1 year:

(b) For a mi:;de-meanor of the second d~gree. by a defmite t(:"rm of imprj~nmf'"nt IHJl C}<c'..'l'dmg GU u.lys. ...

EXHIBITB

{

TREI~L\N v. STATE EX REL. MIl'i ER Fla. 825 CIL1" fU. Flll .. 3-13 51.>.2" 819

APPENDIX A-Continued

organized into an institute requiring rCSl-

~ dent instruction of four days of each mont.h from October through June. Each institute provided 100 hours of ct! ... .';sroom in~tr~ction c(wering three separate courses. The pro­gram was organized on this basis [or both the. 1974-75 and 1975-76 program years. The 1975-77 program year \'la~ re..,;truc­lured into a single institute involving a complete \veek (Monday through Friday) of resident instruction each month for eight months (November. 1976 through June, 1977). The: 175 tolal instruction hours for the fifth institute is divided into five course blocks of 35 hOllrs each. One of the five blocks has been furiher s.ubdivided into l\\'o separate courses.

The underlying philosophy of the pm­gram was to provide the participant::; with a

substantial portion of a conVentional law school education. Standard law school ma~ terials, teaching methodology, examinations and instructors have been used throughout the program in furtherance of this objH­tive. The material covered in the various courses involved material for which approx­imately 100 quarter hours of credit would be offered in the ordinary curriculum of the University of Florida College of Law. This would calculate to 7970 of the 126 hours required for graduatLon from the Co1lege of Law. Because of the rearrangement of the material into slightly different course struc­tures with nt::cessary omissions and instanc~ es of abbrevjat~d coverage, 7970 probably represents a slight exaggeration of actual coverage. Nonethel~ss. it should stand as a usefu I estimate.

II. CO~,!PLlANCE WITH ORDER

1. Curriculum

A tt.<lched herelo is a listing of all courses offered during the program indic3.ting the tille of th~ courses, the law professors teaching the ('OUrses, and the Univcr.:;ity or Florida College of Law counterparts to the COUr2,es. Attached also is that portion of the Coll~g-e of Law Catalog- describing the

law school courses. Please be advbed that because of a mode:-:t restructuring of H:.e law school courses for program purposes, the catalog descrip!:ons. will contain slight inaccuracies. For this ~€asun an appendix of exact course descriptions 8.nd examina­tions prepared by the pT'ograrn professors for lJse during the program has been sub-­mitted to lhe Court and counseL

2. Hours of Study ,1nd Total DUT2tion of. Program

During the course of the program <!.r~

proximately 600 hours -of re::,ic!enl instruc­tion ;vill have been off creel to the partici~

pants at the Univers:ty of Florida College of Law. 575 of these h.')urs have been in the form of regularly scheduled cl?ssroom hours. An es.timate of approximately 25 hours of instruction has been 2.ssigned to the legal writing program to account for the irregularly scheduleci lectures and con~ sultations required. The method of instruc­tion used in all courses additionally required liter::!!ly huncIre<ls of hours in reading, stuciy, composition and preparation outside of the cla.::;sroom on the part of each partici-

pant. "

Generally, the total hours of instruction Vtere divided into 32 to 35 hour blocks for each course taught. Ho\,.-'ever, appropriate cou rse cove-rage on occasion rcquireci reallo­cation of the time available among the courses in somewhal differer.t configura.­tions. The variations would not seem suffi­ciently significant to cletaiL

As pr~\'iousl'y indicated, the pl'Obrram commenced on August 15, 1974 and \viH he concluded on June 30. 1977.

3. Faculty and TC:J.ching 1Hcth?ds

A complete lisling of the prog-ram facult)· is contained in the curriculum attachment referred lo in section olle. The program raculty \verc c.hosen from the facully or Lhc College of Law ane! all arc experienced ami consid~red well qualified in the 2.(eas lo \vhich they ' ...... erc ass:,gnc(L A lisLi<lg- of the

f XHIBIT B

n" ,;",'=Ii.

826 Fla. 3J3 SOUTHER:-i REPORTER. 2d SERIES

APPENDIX A-Continue(l College of Law faculty indicating Oeg;-ees ' helli and academic rank is attached for ref­erence.

The te"ching methooology for the pro­gram is identical to the methouology used by the various profe.!!osors in their regular la w courses. The specific methodo1ogy var­ied greatly from course to course, however, a basic familiarity with general law school teaching method. should suffice to provide an adequate insight as to th;: overall teach­ing conduct of the: program.

4. Testing Method. and Grading

At the outset of the program a ba3ic decision was made against the u3ual 3..3-

sumption of the absence of testing 3:ld

grading underlying m03t other continuing legal education prog-.-ams. It Was thought that to maintain consistency \vith the phi­losophy of ciO:5e replication of a conver:.tion­aI lav .... school experience that some form of testing and academic inc.entives v,:as neces­sary.

The basic method of law school examina­tion was retained primarily for its intrinsic value as 2. substantial learning experience, both in the preparation fa:- exams and in the analysis required in taking them_ The examination methods actually used in the program varied widely as can be observed by reference to the complete set of exams given to date' contained in the a}!pendix_

All exams appear to be appropriate to the course material in each course and in ag;;re~ g~:le constitute- a fair cress section of cor;­ventional law school examini1tion methoo3_

The grading method used in the pros-am rcpres-ents an attempt to pre~erve a system

of i!lcenlives. within a group of students as to ,,/hich it W2.S thought to be inappropr.2.te to use conventional grading rE2Ihoch. From all oDservab1e indiC2tio:13, the s}stem h2-S operated to create the desired level of competition within the grO;Jp_

The standard grade a "varded in each cDUtse is simply "complete", which s:gni:ies that the student has regula:-1y attended ciasses and has made a good faith efiort in tahbg the exam. If it is determined that a good faith effort has not been made a grade of "tTIcomplete" is est2.blished and an zddi­t;onal examination is 5chedu1ed. The SY3-

tern of incentives. is predicated upon the ranking of the best ten examinations in each course in the order of accomplishment. The ten best students receive the nUJ:1e:ical ranking as a grade in lieu of the standard Hcomplete". O~ly students \vho successful­ly complete the exarr.s on the first tll_king participa te in the rar:.ki ng.

5. Post Program Req uirements

At the present tim~ no f'Jrther study requirements after graduation have be~n established.

Appendix B to follow.

B

, !I,'S':!:-UTE

First

Second

Third

rourth

Fifth

APPENDIX B CUR RIC U L U M

NON-LAII'YER CCUHTY JUDGE ~MINING P RCGRAM

COURSES OFFERED

1, 2, l,

1.

2,

l,

4 ,

Florida Constitutional L<1' .... C,l..vil Procedure tvidcnca

r:vidincc civil Procedure 'Constit'Jtl.onal Law

Con'trll.cts

1. Propert.y

2. Torts

.3. Criminal Law

1. Com.;'l'.crcial Transactions 2. criminal Procedura.

J. Business O::gania.tions Corpan.tions

1. Commercial Tran!>.1ctiOns r1

l. Estates' Trusts I ], RCII".€:dies ~. Jurisprudcnc~ 5. Domestic Rclatiot'.s 6. Profe~sional Responsibility

PF.OHSSOR

J. C. QU<'lrlcs H. O. 1:T'.· ... ·"1l J. R. Pierce

J, r::. Lewis J, E. LC<""i5 F. N. Billd',..:in

D, B. Ocaktor

S. Rubin

D. T. Smith

W. Probert

J. C. Quarles

D. Delany G. T. Bennett J. n. Picrcc J. J, rrcclar;d

,H. E. \'lilliams

D. T. Smith. F. E. Halon(?y P"C.L. J.:offat ','f. o. Weyrauch D. B, DCrlktor

1. 2. l,

1.

2,

4,

COLLEGE OF L.'.W ~L\TERI .. \L COVEMD

LW 653 - Florida Constitutional LW 52l - Civil Proccdu:o LI1 G25 - Evidence I

LIl' 626 LIl 522 Ll1 541 L\.;' 50 I.H 501 Lli 502 L'd 5!Jl L'd S92

- t:videncc II .. Civil Procedure II - Con~tltutional Law I - Con5titu~ional L~w II .. Contract:> I

Contracts II - Legal Writi~q I - Legal Writing II

l. LH 531 - Propc!l:'~y r LW 5]2 .. Property II

2. LW 571 ... ,Torts I LW b72 - Torts II

3. LW 591 - Criminal La',.,..

1. L"rl 601 .. Comrr,8rcial Pilper 2, L\1 69] .. Advcrsnry Procezs

LW 693 .. Police Practices 3, LH 502 .. IIu.:;incfiS organizations.

Lid 603 - corporations

1. LH GOO - Salc!: LW 60G - security in Goods

2. LW GJO - Estates & Trusts I 3. LI1 G 71 - )1.cmcdie5 4, L'd G10 - Jurisprudence 5. UI G90 .. Family La.",. 6, LW 619 .. Legal Ethics

i'

Law

828 Fla. 3,3 SOUTHER:-i J~EPORTER, 2rl SEHlES

OVERTON, Chief Justice, concurring.

I fully concur in the opinion by Mr. Jus~ tke Sundberg.

It must he recngnized that this opinion is based on \vhat is constitutionally required and not what is administratively desirable. OUf ruling io<lay is necessar)' beC~1U5e of the dict.2tes of the United States Suprene Court's decision. in j\~orth v. Russell. 421 U.S. 328, 95 S.Ct. 2709, 49 L.Ed.Zd 53~

(1976). It recognizes that a defendant in a criminal trial \ .... hich may re:mlt in imprison­ment may be tried by a nonlawy'er judge jf

the defendant has an opportunity for a second trial '.,,'here evidence will bo::! received before a law trained judge. Although this decision of the United States Supreme Court basically approves the historical use of nonlawyer magistrates, it does so condi­tionally upon at 1east one of the h!storical checks on the judge's authority being avail­able to a defendant.

Under the historic: Engli:;h system magis­trates have no authority to try a jury case. Checks on their actions ir..clude allowing either an appeal de novo (retrial) before a lawyer judge together with magistrates. as fact finders or an opportunity for the de­fendant to ask for a high court jury trial with a law trained judge. In addition, the English system provides for a clerk ~,',:ho is a lawyer to advise the magistrates on the law. Further, the extent of punishments that can be imposed is more limited than in our present system and, in addition, the sentence is subject to review by a court presided over by a law trained judge. See The Legal Systems of Britain, British Infor­mation Services (M3rch 1976), and English and American Criminal Law and Procedure, A Comparative Analysis CI1. T. Sennett and B. J. Gf!orge, Jr., Am~rican Bar _A.ssocialion Section of Criminal Justice, 1976}.

\Ve provide none of the foregoing checks in the llse of nonlawyer judges. in our judi­cial .sy:::.teln .. Such would require su\i;;lan­tia1 revision in our present system.

ADKINS, J., concurs.

•

F.03ERTS, Justice (Retired), dissenting.

I Tespectfu11y dissent and it is my view th3.t a nonl3wyer County Judge in (L cour.ty

",:ith 2. popublion of less than 40,000 ptr­sor;s has the con~titl!tion;J.l pOVJer and duty to exercise the full jt:::-isdiclion of that of­fice. It 1S elementary tn:lt the SO'. ere:ign st;1te3 have the right to prescribe the quali­fications for their slate and county officials. S~ction 6, Article V, CO;1stitution of Flori­d;!, provides for 2. County Court with mi5de­meanor jurisdiction. According to legisla­tive records, the matter of qua.li:ic2.tlons for CO'Jnty Judge~ in countie3 of less. than 40,-000 wag fully debated and the Lei3lature re30bed that a County Judge in slJch coun­ties \1,-'ou1d net b2: required to be a lawyer; see Sec:ion 20(0)(11), Article V. Florida C0::13tit.;Jtion. Upon submission to the peo­ple, ~'ne electorate of Florida approved the amendment submitted by the legislative resolution; see Sfftion 20(c)(1l), Article V. Florida Consti.tution. '1:0 interfere with that orderly proces3 of establighi:!.g the qualiiica;:iong Df a county office \vould be an act of judicial activism with which I , C2.n:1ot agree. Furthermore, the Tenth Amendment to the Constitution of the Ur.Lted States. provides:

"The powe-:-s not delegated to the Unit­ed States by the Constitution, r.ar prohib­ited by it to the States, are reser','eo to the States respectively, or to the people."

I am unable to find where the State oi Florida ever submitted to the Wa:'ihington goven:ment the power to interfere with the prescribing by the people of this state of the qU31ificatlIJns of its county officers, nor C.3-n I fin(l any application of the Fourteenth Anemlmenl to the Constitution of the united States in this situation. The answer to the C]uestion appear.; to me to be simple, vi:z.' J the Legislature had the right to resolve in a proposed con5titutional ,11~ltndment for a County Court lo have jurisdIction over misdemeanors .3-nr' La be prcsillt:!fl oVer by a nO!1l:1wyer County Judge and the pl:ople of Florid:! kHl the right to adopt that .n.mend=-l lIl~nL

J, therefore, rcsp~ct.(ully tlis:,enL

· .

,-

==~ ~-====-=-=-========~, "'"

To:

From-

Date.

:p~\, ~ t-r'"'-' '."" ~~i Nevada Court System

~~:~. Administrative Office of the Courts

John and Terry

Ed

Harch 7. 1979

}lONTAlJA

There are no hard facts on increased case load, these are estimates by the State Court Administrator, 11r. Hike Abley.

Hhen jurisdicition incr,eased -$1,500 civil litigation $ 750 small claims

Case load increased over 50% in: Great Falls Billings

~~) Fact: A number of jus tice courts ",lere des igna ted to only handle small claims.

In rural areas better than a 25% increase in case load.

r: v", Q 53 1

Minu!es of the Nevada Stale Legis1ature Senate Commirt:!"e on". __ . ___ .J_1J_~:li"g.i.g..x:y._.~. ______ . __ ._."."_. ___ . __ --.... "---." .. -:-.. -... -.. -----.. "-"-... -~--~-.~-..... -------- ... --.---.. ---.-- ... -.. Da'cbP:Li_:L. __ J;_L:L.~_1_~ __ ... . Pa.ce . .!?_. __ ......... _ ...... _ ....................... _

allow the trustee to sell the property, unless the deed specifically eliminates that power, he feels the issue is being clouded by calling it an "expressed trust."

Senator Dodge asked if Senator Ashworth didn't want this to take care of a living trust situation.

Senator Close stated he would think that it would be the persons responsibility. right to sell property deed.

If he wants to limit a person's v

than that should be stated in the ~

Senator Sloan asked if there was some language in there to make it prospective.

Senator Close stated that this doesn't apply to property acquired by a trustee on or after July 1, 1979.

The Committee concurred with taking "expressed trust" out of the bill.

SB 267 Transforms justices' courts to courts of record. (See March 8 for previous testimony.)

Senator Sloan stated he had a letter from Eileen Carson, and she states that the number of appeals was very small. He stated he knew that the number of appeals in municipal courts Were far more substantial than in justice court.

Senator Dodge stated that he had a call from Frank Fahrenkopf about this bill and also about the increased jurisdiction in the other bill. Frank told him that he teaches courses to the J.P. 's, and they feel that they are going to get a lot of increased traffic with the raise on the monetary limits. He thought that we ought to make the effective date at least January 1, 1980 to give sufficient time for indoctrination.

Senator Close stated that he had the amendments and as far as he could tell it was what they had asked for.

The Committee concur~ed with the amendments.

SB 185 Permits interception of communications and Use of evidence derived from such interceptions in certain circumstances involving gaming violations.

S Form 63

(See minutes of February 28, March 13 and 26 for previous testimony and discussion.)

Senator Close stated that as he recalls they were going to limit this to hidden interests, and also require that the Chairman of the Gaming Commission authorize the wire tap. He stated he was not sure that there Were enough votes to continue processing the bill.

(Commlttee Mlnufoe-s)

8770 -E?-

Minutes of the }Jevada State L~~s1ature Senate Committee on. _________ .J_1l<;~ti_<;;:;_i_Q.x.:y ____ ________________ . _____ . ____ . ______ .,. _______ . __ . __ .. _ .--... -------.----.. -------.-----.-.----------- .. -----... --Datc: _______ I:,PT;,J ___ J~_1 __ J_n9 Page: __________ J ___________________________________ _

Senator Ford stated also we are changing the $50,000 to $100,000.

JO

Senator Ashworth stated if you are going to have the acceleration clause tten you can't have subsection 2 in section 8. The whole purpose is that these are supposed to be separate distinct payments, that does not accelerate the body of the entire annuity.

%t ---____ fu

SB 267

S Form 63

Senator Close stated, "I think what we intended, when we passed this two years ago, was to come back every month to compel the fellow to make the payments and you can hold him in contempt of court if he doesn't You may still want to have the overall structured settlement that has been ordered and he may prefer that, rather then calling the whole amount due and payable. I will request the amendments and bring them back before we vote on this."

Transforms justices' ceurts to courts of record.

Senator Close stated after "suitable person" add in "need not be certified shorthand reporter."

Senator Raggio stated we should have language in there that another person, other than a governmental employee's compensation, should not exceed what is paid to the shorthand reporter and make sure it tracks with the definition of a shorthand reporter. Also some language that will cover if the smaller counties do want to have an employee do the transcription.

Senator Close stated we will put in something like "regularly employed public employees should receive no additional compensation for recording or transcribing the proceedings." Then we have the last portion which says if he is a certified shorthand reporter and is employed to transcribe the proceedings, he is to be paid the same fees as applied in district court. Also we will remove Section 4, subsection 1 and 2 and put this language into Section 3. If there is no requirement for the shorthand reporters to keep their tapes then they may be destroyed 30 days after the time of appeal is up. Beyond that point of recourse there is no point in keeping the tapes and tl-ley ought to be able to dispose of them.

Senator Hernstadt moved that SB 267 be passed out of Committee with II amend and do pass II recommendation.

Seconded by Senator Dodge.

Motion carried unanimously.

(C(lmmitte~ ~finlJt~)

8770 ~

S-790

SECOND READING AND AMENDMENT

Senate Bill No. 267. Bill ft!ad second time, Tht: following amendment was proposed by the Committee on Judi-

ciary: Amendment No. R13. Amend section I, page 1, line I, by deleting" 1" and inserting' '4". Amend section 1, page 1, line 2, by deleting "7,11 and insening

US," . Amend section 2, page 1, by deleting lines J through 18 and insert­

ing: "Sec. 2. Proceedings in each justice's courl must be recorded by

IJsmg sound recording equipment except where the board 0/ county commissioners o/lhe county in which fhe court is located authorizes, and [he jus/ice o[ (he peace appuints, a certified shorthand reporter 10 lake down tlie proceedings in the same manner and w)th the same effect uS ill tJ district cOllrl. ".

Amend st.:t.::tion 3, rages 1 and 2, by deleting lines 19 through 25 on page! and iint.!'s I through 3 on page 2 and inserting:

"Sec, 3, J, Each Justice 0/ the peace shall appoint and, with the approval of the hoard 01 county COli/missioners, fix the compensation of a silirahle fJl!rson, whu need flOt be a certilied shorthand reporter alld ilia)! have olher re,~pu/1jIf_)[;;f1es in the COUl'l fa operate the sound, rf!(urdif;g ('{/UI/J/J/{!Ill. The person so appoinled shall sub'}cl'ibe to an outh OWl he will w upelute il as lU record all 01 the proceedings,

], rite Justh'e oj the peace may designute the ~'al1'/e or anorher per­!;'Ofl 10 transcnl)f! the recurdlng into a wrilten transcript. The person so df!.)'igfltl(ct/ shall subs~'nbe fO an oath fhut he has correctly transcribed If. Tilt' f!'(.mscripf muy be used lor al/ plllp()~'er jor which (ranscripts are IIsed and i~' suhject to correction in the mille manner as other (ran­!-.cripls. ",

AIlI~lId sCl:!ion 4, page 2, by deleting lilies 4 through 6 anel inserting: HSec , 4, I. If the person designuted /0 trun.::,cnbe (he proceedlllgs

is: (a) Regularly employed as a public elllployee, he is not entitled (0

additional cUlllpellsatiun for preparinJ!, the frall!;'cript. (b) Nut reJ!,ufurfy elllployed as a puhllc elllployee and flot a certified

~'IlOrlhand repUf(t!f, he IS en tilled (() such cOlllpells,aliofl lor preparing Jhe framcript as lhe uourc/ oj cuunty commissioners rlerermines.

(c) A celtl/ied !;'llOrt/ulIId reporter, he is en filled 10' fhe same fees for preparing the transcript as ill the district court.

2. The jee!. for transcript!;,' and copies must be paid by the party ordering (hl!lI/, III a civil case fhe preparation 0/ the transcript need Ilot comml!l1ce ulllil the fees have been dep05iu!d with the clerk 0/ the ('our!. ".

Amend section 5, page 2, by deleting lines 7 through 10 and imerL­ing:

"Sec. 5. The sound recording of eueh proceeding in justice>s courl rnust be preserved wllil af leas! 30 days after ,he (irrle for filing an

. w WW'F' '3m' ,'rTEF F

S-791

appeal expires. If no appeal is taken, the jusJlce pi Ihe peace may order the destructIOn oj the recording at any time ajter that date. ij there is an appeal to the districi court. the sound recording fIIust be preserved until at least 30 day>" a/ler /inal disposition o/Ihe case on appeal. but the justice 0/ the peace may order Ihe destruction 0/ the recording at any time after that date. ".

Amend the bill as a whole by deleting sections 6 and 7 and renum­bering section 8 as scction 6.

Amend section 8, page 3, by deleting lines 27 through 29 and insert­ing:

"1.020 The s.upreme court, the [several1 district courts, and [such mher courts. as the legislature shall designate, shall be] the justice5 >

courts are court~ of record.". Amend the bill as a whole by deleting section 9 and renumbering sec­

tions 10 through 15 as sections 7 through 12. Amend section 10, page 4, by deleting lines 21 and 22 and inserting: . (i1. Except as provided ill subsection 2, if (he district court finds

that the transcript 0/ a case Which was recorded by sound recording equipment is materially or extensively defective, the case must".

Amend section 10, page 4, line 25, after C'Lourt." by inserting "or stipulate to a particular chunge in (he transcnpt, ".

Amend section 10, page 4, line 26, after "transcript" by inserting {{as accepted or chang;!(r',

Amend section 11, page 4, by in~ertlng b~twccn lines 35 and 36: "3, if the disfrict judge so re(l"eSiS, heIwe or after receivil~g (he m

recurd, the justice oj the peaet! shall transmit (0 him the sound record- (D

itlg of (he case. ". !:J Amend section' 12, page 4) by ddeling lint.: 38 and inserting: ~

"court [for trial anew.] to be judged on fhe record.". (D

Amend seclion 13. pages 4 and 5. by deleting line, 39 through 50 on tJ page 4. and lines I through 15 on page 5 and inserting: PI

"Sec. 10. NRS 266.565 is hereby amended to read as follows: f-'. 266.565 I. The practice and proceedi~gs in the municipal courtJ<

shall conform, as nearly as praclicable, to (he practice and proceedings of justices' courts in similar ca$es [.J , except thai an appeal perfected 6 transfers the action to Ihe district court lor trial anew. The municipal ~ court s~all be treated and con~iderecl a~. a juslice's coun whenever the 9 proceedings thereof are called Irlto qut::slIon.' III

2. The papers and pleadings filed III the IIlunicipal court and pro- ....... ces"> i.,suing therefrom shall be entitled "In tile Municipal Court of the I City of .... "

3. In all actions for the violation of allY ordinanLc, it shall be ),uffl-~ dent if the complaint refer to the title and ~ection of the ordinance Ii under which such action is brought, rs·

4, Aft ,actions brought to recover any fInC or to enforce any penalty ....... under any ordinance of any city shall he brought in the corporate name w of the city as plaintiff; and no prosecution, recovery or acquil!«! lor 0

the violation of any such· ordinance shall constitute a defense td any'" . other prosecution of the same person for any other violation of any J-I such ordinance, although the different causes of action exi~l~d at the ~

""

i '

I~i r- I,

S-792

same time, and if,united would not have exceeded the-jurisdiction of a justice's court.··.

Amend section 14, page 5, line 16, by deleting "3.320 to 3:380, inclusive, Y'.

Senator Close moved the adoption of the amendment. Amendment adopted. Bill ordered reprinted. engrossed and to third reading. -

Senate Bill No. 412. Bill read second time. The following amendment was proposed by the Committee on­

Human Resources and Facilities: . Amendment No. 821. Amend section 1, page 1, by deleting lines 1 and 2 and inserting: "Section 1. NRS 394.371 is hereby amended to read as follows: 394.371 1. The following kinds oC education and institutions are

exempted from the provisions of the - Postsecondary Educational Authorization Act:

[1.1 (a) Institutions' exclusively offering instruction at any level from preschool through the twelfth grade.

[2.] (b) Education sponsored by a bona fide trade, business, profes­sional or fraternal organization, so recognized by the commission solely for the organization's membership, or offered on a no-fee basis.

[3.) (c) Education solely avocational or recreational in nature, as determined by the commission, and institutions offering such education exclusively.

[4.) (d) Education offered by eleemosynary institutions, organiza­tions or agencies, so recognized by the commission? if such education is not advertised or promoted as leadmg toward educational credentials.

[5.f (e) Postsecondary educational institutions established, opera[ed and governed by this state or its political subdivisions:

[6.) (f) Schools licensed under other provisions of Nevada law. [7.) (gJ Flying schools certificated by the Federal Aviation Adminis­

tratl(~n. (h) Educational seminars which qualify for exemption pursuant to

the provisions of subsection 2, and institutions conducting in this slate only_educational seminars which so qu.altfy.

2. An educational seminar is not exempt jrom the provisions of the Postsecondary Educational Authorization Act unless:

(a) It includes Jel"er than 40 clock hours oj instruc/lOn; (b) It oifers oniy continuing education units or other types of

instruction jor which the units earned are not recognized as college credits and do not lead toward an acaaeinic degree; and (c) Its adver­tismg does not represent thai the instruction or training will prepare persons at the entry level for any fIeld or occupation. The ,commission shall adopt -regulations relatini to the criteria for exemption set forth in this subsection and may prescribe conditions and procedures for the granting of exceptions. H.

Amend the bill as a whole, by deleting sections 2 through I!. Amend the title of the bill to read:

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(REPRINTED WlTII ADOPTED AMENDMENTS)

FIRST REPRINT S.B.267

SENATE BILL NO. 267-COMMITTEE ON JUDICIARY

FEBRUARY 27, 1979

o

Referred to Committee on Judiciary

SUMMARY-Transforms justices' courts to courts of record. (BDR 1-1493) FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: No.

EXPUNAnON-Matter in ltaIlcs is new~ matter in brackets r ] is material to be omitted.

AN ACT relating to iustices· courts: transforming them to courts of record; and providing other matters properly relating thereto.

The People of the State of Nevada. represented in Senate and Assembly. do enact as follows:

1 SECTION 1. Chapter 4 ofNRS is herebY amended bv adding thereto 2 the provisions set forth as ,",ctions 2 to 5, inclusive. of this act. a SEC. 2. ProceedinRs in each justice's caurt must be recorded by using 4: sound recordinR equipment except where the board of county comm;s-5 sioners of the countv in which the COflrf if) located authnrizes, and the 6 justice of the peace oopoints, a certified shorthond reporter to take down

------, 7 the proceedings in the same manner and with the same eOect as in a 8 district court. 9 SEC. 3. 1. Each iustice of the peace shall appoint and, with the

10 approval of the board of cOllnty commissionas, fix the compensation of 11 a suitable person, who need not be a certified shorfhnnd reporter and 12 may have other responsibilities in the court to operate the sound record-13 ing e(lldpment. The person so apnointed sholl wb,cribe to an oath that 14 he will so operate it as to record all of the proceedings. 15 2. The justice of the peace may desi?nate the same or another per-16 san to transcribe the recording into a written transcript. The person so 17 designated shall SIIbscribe to an oath that he has correctlv transcribed it. 18 The transcript may be used for all purposes for which transcripts are 19 used and is subiect to correction in the same manner as other transcripts. 20 SEC. 4. 1. If the person designated to transcribe the proceedings is: 21 (a) Regularly employed as a public employee, he is not entitled to 22 additional compensation for preparing the transcript. 23 (b) Not regularly employed as a public employee and not a certified 24 shorthand reporter, he is entitled to such compensation for preparing 25 the transcript as the board of county commissioners determines.

--2--

1 (c) A certified shorthand reporter, he is entitled to the same fees for 2 preparing the transcript as in the district court. 3 2. The fees for transcripts and copies must be paid by the party 4 ordering them. In a civil case the preparation of the transcript need not 5 commence until the fees have been deposited with the clerk of the court. 6 SEC. 5. The sound recording of each proceeding in justice's court 7 must be preserved until at least 30 days after the time for filing an appeal 8 expires. If no appeal is taken. the justice of the peace may order the 9 destruction of the recording at any time after that date. If there is an

10 appeal to the district court, the sound recording must be preserved until 11 at least 30 days after final disposition of the case on appeal, but the 12 justice of the peace may order the destruction of the recording at any 13 time after that date. l4 SEC. 6. NRS 1.020 is herebv amended to read as follows: 15 1.020 The supreme court, the rseveral] district courts, and [such 16 other courts as the legislature shall designate, shall be] the justices' 17 courts are courts of record. . 18 SEC. 7. Chapter 189 of NRS is hereby amended by adding thereto 19 a new section which shan read as follows: 20 1. Except as provided in subsection 2. if the district court finds that 21 the transcript of a case which was recorded by sound recording equipment 22 is materially 01' extensively defective, the case must be returned for retrial 23 in the justice's court from which it came. 24 2. If all oarties to the appeal stiDulate to being bound by a Darticular 25 transcrilJl 01 the proceedings in the justice's court, or stipulate to a 26 particular change hi the transcript, an apDeal based on that transcript as 27 accepted or changed may be heard by/the district court without regard 28 to any defects in the transcript. 29 SEC. 8. NRS 189.030 is hereby "mended to read as follows: 30 189.030 1. The iustice [must,] shall, within 10 days after the 31 notice of appeal is filed. transmit to the clerk of the district court the 32 transcript of the case, all other papers relating to the case and a certified 33 copy of his docket .. 34 2. The jnstice shall give notice to the appellant or his attorney that 35 [all such papers] the transcript and all other papers relating to the case 36 have been filed with the clerk of the district court. 37 3. If the district judge so reauests, before or after recelVlng the 38 record, the justice of the peace shall transmit to him the sound recording 39 of the case. 40 SEC. 9. NRS 189.050 is hereby amended to read as follows: 41 189.050 An appeal duly perfected transfers the action to the district 42 court [for trial anew.l to be judged on the record. 43 SEC. 10. NRS 266.565 is hereby amended to read as follows: 44 266.565 1. The practice and proceedings in the municipal court 45 shall conform, as nearly as practicable, to the practice and proceedings 46 of justices' courts in similar cases [.] , excepl that an appeal perfected 4,7 transfers the action to the district court for trial anew. The muniCipal 48 court shall be treated and considered as a justice's court whenever the 49 proceedings thereof are called into question.

-3-

1 2. The papers and pleadings filed in the municipal court and process 2 issuing therefrom shall be entitled "In the Municipal Court of the City 3 of ........................................ .'. 4, 3. In all actions for the violation of any ordinance, it shall be suffi-5 cient if the complaint refer to the title and section of the ordinance under 6 which such action is brought. 7 4. All actions brought to recover any fine or to enforce any penalty 8 under any ordinance of any city shall be brought in the corporate name 9 of the city as plaintiff; and no prosecution, recovery or acquittal for the

10 violation of any such ordinance shall constitute a defense to any other 11 prosecution of the same person for any other violation of any such ordi-12 nance, although the different causes of action existed at the same time, 13 and if united would not have exceeded the jurisdiction of a justice's court. 14 SEC. 11. NRS 189.040 and 189.080 are hereby repealed. 15 SEC. 12. This act shall become.effective on January 1, 1980.

, 1 ; ,

S-842

A~~cmbly Concurrent Resolution No. 32. Senator Gibson moved that the resolution be referred to the Com-

millet on Legislative FunctIOns. Motion c~rried,

Assembly Concurrent Resolution No, 42. Senator Glh':lon moved that the resolution .be referred to the· Com­

millee on Legislative Functions. Motion ~arried. .

Scnotor Close moved that Senate Bill No. 424 be re-referred to the Committee on Finance.

Mlliion carried.

SenJlOf Gibwn moved that Assembly Dill No. 210 be re-referred to the COllllllillCt on Government AffaIrs.

Remarks by Senator Gibson. ~Vl0Iil)fl earned. .

By Committee on Taxation: Senate Cn!1cllrrent Resolution No. 43-Encouragmg the board of

COlllllY commissioners of each county to prepare and distribute infor­nW\IOIl on the leVYing of taxes and the distribution of tax revenues.

Sr;nalill Ulaser moved that lhc resolution be referred to the Commit-I~~ ~Hl Taxation.

't,llh)1I (allied. By (·illllmitice on Judiciary: \~n.ttl· Concurrent No. 44--·Dlrecting the legislativc commiSSIOn to

\ludy Ihe de~irability of limiting the liabilily of manufacturers and scll­('f\ lor pCr\lJlhd injury, death or property damage CLHI\CJ by defective pltHIII':t'\.

"H 1\,1I1'1r ('!O'll! moved tllat the resolution be referred to the Cummit-1C'f' \111 Lt:~,j)!alive I'unctions.

\'ull\nl l·i.nli~d.

U". ( o!T1ll1incc on Judiciary: ~ n..l'C JI)1111 RC'to!utton No. 25-Proposing to amend section 9 of

4rl,·.!c (, of lill! l..oll'lliLULlOll of thc State of Nevada, relating to munici­r.\l .. \)UI1\. Iii Jlhlw for municipal courts of record.

II." t .... , h, /1,1' \,IIU/t' I1ml ,1\\(!lIlhly oj the Sf(f[e uj N(!l'aria, JOIn(ly, That scc­~ .. ' .. 'T~,;4: I, 1,1 Ill] ~1\lhli!\lli(Jl\ 01 Ihe SIUle of Nevada he amended 10 read d!:.

. . ~'"

I, .• '-' ., 1',n"lllU'i \hall h·c TllInk hy 1,\v.' jJlc!:.ctibing the power~, dutic:; Ilnd , •. :., ... ,,' .'oe> ,I! .. Oil \1\1111. 1[1.11 Coull Ilhlt IlhlY be e~l"b!!shed in purS\lJncc of Sec· ~ ~ •••• J •. ( ,",' ", .. 1(, .Illd .• I~o [l:dn~ by law Ihe Junsdiclion of [said Court so as

.... ~ ..... ,"""''''\ ....... "··.A' ,Ii Iht; \cvl;IJI !C()llll~ oj Record.] (hal calirI.

'-rn..a'I'" • l,'~~ rUI1"1Ci.1 thill the resolution be r'cferred to the Commit­~nr ~,-:', l.t'f,~t"ll~~ I '1f1~II1)n\.

\, •• I~J~l ~~Il.i"\L

"Il .. , MAl 1111 ",ND THIRD READING

~r~"f 'Mt '0 ;fJ" It :: ft'..JJ IhrrJ IIIH(,

, \ .

Roll call on Senale Bill No. 267'. YEA!:.-20. NAn-Nonc,

Senate Bill No. 267 having received a constiwtional lnajority, Mr. President declared it passed, as amenued.

Bill ordered transmitted to lhe Assembly.

Senale'Bili No. 311. BJ!I read third time. Re,marks by Senator Gibson. Roll call on Senate Bill No. 311: YEAS--20. NAYS-None. , Senate Bill No. 311 having receiv~d a conslillIlional majority, Mr.

President declared it passed, as amended. Bill ordered transmilled lo th~ Assembly.

Senale Bill No. 412. Bill reael third time. Roll call on Senale Bill No. 412: YEA.'l-20. NAYs-Non!.!.

Senate Hill No. 412 having received a constitutIonal majority, Mr. President declared it pa~~ed, as amended.

Bill ordered transmitted to the Assemhly.

UNHNISHED BUSINtcss CONSIDERAIION OF ASS[MllLY AMEN[)MENr:.

Senate Bill No. 258. The following Assembly amendment was read: Amendment No. 70(}. Amend section 1, page I, line II, by deleting "5" and

"J 0" . Amend section I, page J, by liLlding line 12 and inserting:

"301-500 5 501 and above 3",

Senator Lnm h moved that lhe Senate do concur in the amendment [0 Senate Bill No. 258.

MOlion carried. Uill ordered enrolled.

Senate Bill No. 49. The follo\Xing Assembly amendment was read:

jnserting~ f-'. t-'

>< c..,

Assemblyg r; ::; Pi t-'

Amendment No. 754. 8:. Amend section 4, page 3, by deleting line 27 and inserting: ~ "Sec. 8. [The] I. SuhjeC/ 10 Ihe powers of Ihe Audil and Taxa-

(fun Committee to approve, rejeCl or revise all bud~efj of the All/llor-1\.) ily, and 10 levy all laXe' Oil ils "ehulf, Ihe Authority shall be governed' by a Board 01'''. t-'

Amend section 4, page 3, line 40, after c1o~cd bracket by insertmg ~ "Governors consisting of". \0 ,

i~ 1'" . i..::t- I f-'> I

Minutes of the N~vada State Leg-~slat~re . JUDICIARY Assembly Commlt1ee on ______________________________ . ________ .. ------------.-.---.- .. --.,----.-

. May 7, 1979 Date. _____ ..... __ .. __ .. ___ . ____ .. __ . ___ . ___ . __

Page: ____ ~ ___ . __ . __ . ___ ... _. ___ .. __ --... --------.--

A Form 70

Members Present:

Chairman Hayes Vice Chairman Stewart Mr. Banner Mr. Brady Mr. Coulter Mr. Fielding Mr. Horn Mr. Malone Mr. Polish Mr. Prengaman Mr. Sena

11embers Absent:

None

Guests Present:

Carl Dodge Jean Ford Sam Mamet Russell McDonald Ray Pike

Terry J. Reynolds Don Robb Jack Stratton Larry Struve

Senator Senator Clark County County Commissioners Association Deputy Attorney General, Gaming

Control Board Aili~inistrative Office of the Courts Attorney Gaming Control Board Deputy Attorney General

Chairman Hayes called the meeting to order at 8:07 a.m.

SENATE BILL 267

Transforms justices' courts to courts of record.

Senator Dodge said that this bill went back approximately ten years to a study that he chaired concerning the court system in Nevada. A recommendation then was to make a court of rec­ord out of the justice court.

Senator Dodge said that the bill would provide that machinery record the proceedings of justice courts. He said that jus­tices of the peace did not feel that voices could be dis tin- ~ guished on the tapes if there was a transcript needed of the proceedings.

Senator Dodge said that passage 0= this type of legislation would have the effect of avoiding the necessity of going through a total rehearing if a case went to the district court. He said that a person gets two shots at being acquit­ted. A second effect of the bill would be to encourage a three-tier court system in Nevaca. This system would consist

(Committee ~tmu1es)

8769 '155 ~

A Form 70

of lower courts, district courts, and appellate courts. He felt this would also give lower courts more stature by making them courts of record.

Senator Dodge said that the specific thrust of the bill is the allowing of a taped record of proceedings. He said that section 2 of the bill provides that proceedings must be re­corded by using sound recording equipment except in certain situations where a certified shorthand reporter was available., Section 3 would allow present employees of the justice court to operate the recording machinery. Subsection 2 of this section would let the same person transcribe from the tape in case there was an appeal to the district court level. Section 5 of the bill would provide for preservation of the tape for 30 days after the time for filing an appeal expires.

Senator Dodge said that Section 7, Line 20 anticipates a situation where a tape is destroyed or does not record prop­erly. If this happened, he said that there would be a retrial in justice court. He said this could happen once in a while, but holding a new trial in justice court would be not nearly extensive as going to the district court. Effective date of the bill would be January 1, 1980, to allow justices of the peace to go through training on the use of the equipment at their Fall training seminar at the Judicial College in Reno.

Hr. Fielding asked if this tape recording might be used against a justice of the peace to show possibly that he did not follow proper procedures. Senator Dodge said this would be possible, but he said that a defendant has the same option now in district court. He said this should not be considered a trap to expose the limited legal knowledge of a justice of the peace.

Senator Dodge said that the cost of this type of equipment for each court would be $1200 to $1300 a machine. Tapes would not be that expensive, although there would probably be a larger initial cost.

Mr. Stewart asked why municipal courts had not been included in this bill. Senator Dodge answered that it would be uncon­stitutional to include municipal courts at this time. He said that a joint resolution had been introduced to address this s'ituation.

Chairman Hayes asked if it would be constitutional to hold a new trial just because a tape recording was defective. Senator Dodge said that the same situation happens if a court reporter becomes ill or dies before a transcript of a court proceeding is done.

Hr. Harnet said that Clark County felt this bill would make sense in modernizing the judicial system in the State.

(Comnllttee ~liDute!)

8769 ~

}'finutes of the ~cv~.,d~ State le~islature Assembly Committee on _______ JDPJ_CJl' __ R¥. __ Dar e:_J:ta,y ___ 7 __ '---__ 1. '1-.1_9 ___________ _ Page: ____ ;!

A Fonn 70

Mr. McDonald said he would wonder if the effective date would give small cOill1ties enough time and opportunity to budget money for purchase of such equipment. He said that with pro­posed restraints on spending, this bill might not "fly" for some time.

Mr. Reynolds said that he had been working on a grant that would produce funds to be able to assist the counties in purchasing sOill1d recording equipment. He said that the effec­tive date of this bill would allow plenty of time for pur­chasing this equipment.

Mr. Reynolds said that the case most frequently appealed to a district court is a conviction of DUI. He said that other cases that could be appealed are usually not because district courts are usually tougher than the justice courts. He said the DUI appeals are usually delaying tactics so that indiv­iduals do not get these points on their driving records.

SENATE BILL 420

Provides for gaming licenses for limited partner­ships.

Mr. Stratton said that on Page 9, Line 16, all of the taxing sections were included except NRS 463.385. On Line 13 of the same page, after the word, "re-organization," the following language should be added; "and approved by the commission,".

SENATE BILL 438

Limits duration of and expands permitted reasons for temporary furloughs of prison inmates.

Senator Ford presented a letter to the Committee regarding this bill (Exhibit A). She said that there were some inmates that did not deserve this type of privilege, but she said there were others who could be helped by keeping in touch with society. She stated that she had received letters from women prisoners concerning the reasons they would favor a bill such as this.

Mr. Stewart said that he felt a reason for criminal pill1ish­ment is to let a person be responsible for his acts. He said that prisoners receive a lot of benefits they did not get 30 years ago.

Senator Ford stated her agreement that a person should be re­sponsible for his actions, but she said that the thing to remember is that sooner or later, the prisoner will probably be released back into society. She said that it would seem that allowing the warden to let the prisoners get ready to be responsible when they get out should be something that is done.

(Committee )Hnu/es)

8769 ~

957

Minntes of the Neyada St:lte Le~isbture

Assembly Committee on. ___ . ___ JJJRJ.(;:.;I_h.BX ____ ._ .... Date: ____ }1i3y._?( ___ .l_~_?<:J _______ _ Page: __ ._l ..... _._ ..

ASSEMBLY JOINT RESOLUTION 29

Mr. Malone moved Do Pass on A.J.R. 29; Mr. Prengaman seconded the motion. The Committee approved the motion on the follow­ing vote:

Aye Hayes, Stewart, Brady, Coulter, Fielding, Malone, Prengaman - 7.

Nay Banner - 1. Absent - Horn, Polish, Sena - 3.

SENATE BILL 420

Mr. Stewart moved to AQend, and Mr. Malone seconded the motion. motion on the following vote!

Do Pass S.B. 420 as Amended; The Committee approved the

Aye - Hayes, Stewart, Brady, Coulter, Fielding, Malone, Polish, Prengaman - 8.

Nay None. Absent - Banner, Horn, Sena - 3.

SENATE BILL 267

Chairman Hayes suggested the amendment on Page 1, Line 3 of the word Hmust rr to 11 may II ~

Mr. Stewart said that this would give local justices of the peace the option of using a tape recorder or using a court reporter in their courtrooms. This would further eliminate two trials for a misdemeanor that is presently appealed to the district court.

Mr. Prengaman moved to Pnend, and Mr. Coulter seconded the motion. motion on the following vote:

Do Pass S.B. 267 as Amended; The Committee approved the

Aye Hayes, Stewart, Brady, Coulter, Fielding, Horn, Malone, Polish, Prengaman - 9.

Nay None. Absent - Banner, Sena - 2.

ASSEMBLY JOINT RESOLUTION 30

Mr. Horn moved Do Pass of A.J.R. 30; Mr. Malone seconded the motion. The Committee approved the motion on the following vote!

Aye - Hayes, Brady, Fielding, Horn, Malone, Polish - 6. Nay - Prengaman - 1. Not Voting - Stewart, Coulter - 2. Absent - Banner, Sena - 2.

(CommIUee l'Ifinutes) S61 A Form 70 8769 ~

';'.'.'

Assembly Daily Journal - May 24, 1979

A-1440

If the comffi1SSlon determines -that [such] the business or person is unsuitable to be associated with a gaming emerprise, [such association shall] the association must be terminated. An)' agreement which enti­tles a business other than gaming to be conducted on [such] the prem­ises, or entitles a person or business other than gaming to conduct business with the licensed gaming establishment as set forth in para­graph (b) or (c) of this sllbsection, is subject to lermination upon a finding of unsuitability of the business or of any person assoclated therewith. Every such agreement [shall] mllst be deemed to include a provision fOf ils terminalion without liability on the part of lhe licensee upon a finding hy the commission that the business or any person asso­ciated therewith is unsuitable to be associated with a gaming enterprise. Failure expressly to include [such a] thaI condItion in the agreement is not a defense in any action brought pursuant to this section to termi­nate the agreement. If the application is not presented to the board within 30 days follmving demand or the unsuitable association is not terminated, the commission may pursue any remedy or combination of remedies provided In this chapter.".

Amend the bill as a whole by inserting a new section, designated see~ tion 24, following section 23, to read as follows:

"Sec. 24. Section 14 of this act shall become effective at 12:01 a.m. on July 1,1979.".

Assemblyman Stewart moved the adoption of the amendment. Remarks by Assemblyman Stewart. Amendment adopted. Bill ordered reprinted, fe-engrossed and to third reading.

SECOND READING AND "MENDMENT

Senate Bill No. 267. 1\111 readsecono tlme. The following amendment was proposed by the Committee on Judi-

Clary: Amendment No. 1065. Amend section 2, page I , line 3, b~ deleting '~must'~ and inserting

H fnay ". Amend section 3, page I, line 9, by deleting "shall" and inserting

Hmay". Amend section 9, page 2, line 42, by deleting the period and insert­

ing Hi! the proceedings were recorded. If nat, the action mllsf be Ined anew in the district court .. H.

Amend the title of the bill to read: "An Act relating to justices' courts; constituting them courts of

record; authorizing use of sound recording equipment in justices'­courts as an alternative [0 shorthand' reporting of proceedings; and providing other matters properly relating thereto.".

Assemblyman "Stewart moved the adoption of the amendment. Remarks by Assem biyman Stewart. Amendment adopted. Bill ordered reprinted, re-engrossed and to third reading.

Senate I Bill reae The foJ

Judiciary; Amendr Amend

Hvehicle". Amendr. Amend Amend "3. TI:

sec lion 9 (

f -'5fJ~~ hrrrUIU\--------

Senate I Bill read Remark~ Roll call YEAs-40 NAYS-N(

Senate J Speaker pI

Bill ord,

Assembl the Genera

Remark~ Motion,

Mr. Speaker Your COil

576, has had with the rec(

Senate E Bill read

As;embl The fall.

(REPRINTED WITH ADOPTED AMENDMENTS)

SECOND REPRINT S. B. 267

SENATE BILL NO. 267-COMMITTEE ON JUDICIARY

FEBRUARY 27, 1979 ,

Referred to Co=ittee on Judiciary

SUMMARY-Transforms justices' courts to court! of record (BDR 1-1493) FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: No.

ExPlANATiON-Mltler in UGUc8 JJ new; matter in brackcl!l [ ) it IDfIterial to be omitted.

AN ACT relating to justices· courts; constituting them courts of record; authorizing Use of sound recording equipment in justices' courts as an alternative to shorthand reporting of proceedings; and providing other matters properly relatiog thereto.

The People of the State of Nevada, represented in Senate and Assembly, do enact as follows: .

1 SECTION I. Chapter 4 of NRS is hereby amended by adding tbereto 2 the provisions set forth as sections 2 to 5, inclusive, of this act. . 3 SEC. 2. Proceedings in each justice's court may be recorded by using 4 sound recording equipment except where the board of county commis-5 sioners of the county in which the court is located authorizes, and the 6 justice of the peace appoints, a certified shorthand reporter to take down 7 the proceedings in the same manner and with the same effect as in a 8 district court. 9 SEC. 3. 1. Each justice of the peace may appoint and, with the

10 approval of the board of county commissioners, fix the compensation of 11 a suitable person, who need not be a certified shorthand reporter and 12 may have other responsibilities in the court to operate the sound record-13 ing equipment. The person so appointed shall subscribe to an oath that 14 he will so operate it as to record all of the proceedings. 15 2. The justice of the peace may designate the same or another per-16 son to transcribe the recording into a written transcript. The person so 17 designated shall subscribe to an oath that he has correctly transcribed it. 18 The transcript may be used for all purposes for which transcripts are 19 used and is subject to correction in the same manner as other transcripts. 20 SEC. 4. 1. If the person designated to transcribe the proceedings is:. 21 (a) Regularly employed as a public employee, he is not entitled to 22 additional compensation for preparing the transcript. 23 (b) Not regularly.employed as a public employee and not a certified

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1 sharthand reporter, he is entitled to such compensation for preparing' 2 the transcript as the board of county commissioners determines. 3 (c) A certified shorthand reporter, he is entitled to the same fees for 4, preparing the transcript as in the district court. 5 2. The fees for transcripts and copies must be paid by the party 6 ordering them. In a civil case the preparation of the transcript need not 7 COmmence until the fees have been deposited with the clerk of the court. 8 SEC. 5. The sound recording of each proceeding injustice's court 9 must be preserved until at least 30 days after the time for filing an appeal

10 expires. If no appeal is taken, the' justice of the peace may order the, 11 destruction of the recording at any time after that date. If there is an 12 appeal to the district court, the sound recording must be preserved until 13 at least 30 days after final disposition of the case on appeal, but the 14 justice of the peace may order the destruction of the recording at any 15 time after that date. 16 SEC. 6. NRS 1.020 is hereby amended to read as follows: 17 1.020 The supreme court, the [several] district courts, and [such 18 other courts as the legislature shall designate, shall be] the justices' 19 courts are courts of record. 20 SEC. 7. Chapter 189 of NRS is hereby amended by adding thereto 21 a new section which shall read as follows: 22 J. Except as provided in subsection 2, if the district court finds that 23 the transcript of a case which was recorded by sound recording equipment 24 is materially or extensively defective, the case must be returned for retrial 25 in the justice's court from which it came. 26 2. If all parties to the appeal stipulate to being bound by a particular 27 transcript of the 'proceedings in the justice's court, or stipulate to a 28 ' particular change in the transcript, an appeal based on thaI transcript as 29 accepted or changed may be heard by the district court without regard 30 to any defects in the transcript. 31 SEC. 8. NRS 189.030 is hereby amended to read as follows: 32 189.030 1. The justice [must,] shall, within 10 days after the 33 notice of appeal is filed, transmit to the clerk of the district court the 34 transcript of the case, all other papers relating to the case and a certified 35 copy of his docket. 36 2. The justice shall give notice to the appellant or his attorney that 37 [all such papers] the transcript and all other papers relating to the case 38 have been filed with the clerk of the district court. 39 3. II the district judge so requests, betore or after receiving the 40 record, the justice of the peace shall transmit to him the sound recordil'!g 41 of the case. 42 SEC. 9. NRS 189.050 is hereby amended to read as follows: 43 189.050 An appeal duJy perfected transfers the action to the district 44 court [for trial anew.] to be judged on the record if the proceedings 45 were recorded. If not, the action must be tried anew in the district court. 46 SEC. 10. ,NRS 266.565 is hereby amended to read as follows: 47 266.565 1. The practice and proceedings in the municipal court 48 shall conform, as nearly as practicable, to the practice and proceedings 49 of justices' courts in similar cases [.] , except that an appeal perfected 50 transfers the action to the district court for tria/anew. The municipal

--3--

1 court shall be treated and considered as a justice's court whenever the 2 proceedings thereof are called into question. 3 2. The papers and pleadings filed in the municipal court and process 4 issuing therefrom shall be entitled "In the Municipal Court of the City 5 of ......................................... " 6 3. In all actions for the violation of imy ordinance, it shall be suffi-7 cient if the complaint refer to the title and section of the ordinance under 8 which such actiou is brought. 9 4. All actions bro)lght to recover any fine or to enforce any penalty

10 .under any ordinance of any city shall be brought in the corporate name 11 of the city as plaintiff; and no prosecution, recovery or acquittal for the 12 violation of any such ordinance shall constitute a defense to any other 13 prosecution of the same person for any other violation of any such ordi-14 nance, although the different causes of action existed at the same time, 15 and if united would not have exceeded the jurisdiction of a justice's court. 16 SEC. 11. NRS 189.040 and 189.080 are hereby repealed. 11 SEC. 12. This act shall become effective on January 1, 1980.

•

Assembly Daily Journal - May 26, 1979

A~1550

Senate Bill No. 263. Bill read third time. Remarks by Assemblymen Dini and Prengaman. Roll call on Senate Bill No. 263: YEAS-24. NAYS-Barcngo, Brady. Bremner, Ca"nar, Coulter, FitzPatrid.., GetLo, Horn.

Mann, Prengaman, Tanner, \Vagner, Webb, Weise-14. _ Absent-Bennell, Rohlnson-2.

Senate Bill No. 263 having received a constitutional majority, Mr. Speaker pro 1'empore declared it passed, as amended.

Bill ordered transmitted to the.Senate.

Senate Bill No. 267. BIICiead--thlf'd tlme. Remarks by Assemblymen Stewart and Wagner. Roll call on Senate Bill No. 267: YEA$-37. NAYS-Hickey. Ab~ent-Bennett, Robinson-2.

Senate Bill No. 267 having received a constitutional majority, Mr. Speaker pro Tempore declared it passed, as amended.

Bill ordered transmitted to the Senate.

Senate Joint Resolution No. 25. Resolution read third time. Remarks by Assemblyman Stewart. Roll call on Senate Joint Resolution No. 25: YEAS-38.

'NAys-None Absent-Bennett, Robinson-2.

Senate Joint Resolution No. 25 having received a constitutional majority, Mr. Speaker pro·Tempore declared it passed.

Resolution ordered transmitted to the Senate.

Senate Bill No. 154. Bill read third time. The following amendment was proposed by Assem blyman C;haney: Amendment No. 1385 . Amend section I, page 2. line 3, by deleting the brackets from

around '~may" and deleting "shalr', Assemblyman Hayes moved the adoption of the amendment. Remarks by Assemblyman Hayes. Amendment adopted. Bill ordered reprinted, re-engrossed and to third reading.

Senate Bill No. 586. Bill read third time. Remarks by Assemblyman Mello. Roll call on Se~a[e Bill No. 586: YEAS-38. NAys-None::. Abs~nt-Be::nnett. Robinson-2.

Senate Bil Speaker pro

Bill order<

Mr~. Spe;;:: Bergevin an with a like Assembly Bi

IN

By the Cc Assembly

general fune fish and ga

-.~

T~v1~ 5hfT. endi f1' porCof'ceri- -June 30, 19'

Assembly far had cor ered engros~ and placed,

Motion c,

Mr. Speaker: Your Comr

had the same recornmendatl

Assembly The folio Amendm Amend t

the words' Assembi)

amendment Remarks Motion c Resolutio

Assembl) action on S

(REPRINTED WITH ADOPTED AMENDMENTS)

TIDRD REPRINT S. B. 267

SENATE BILL NO. 267-COMMITTEE ON JUDICIARY

FEBRUARY 27, 1979

Referred to Committee on Judiciary

SUMMARY-1'nndOl1llll justices' couru to couru of record. (BDR 1-1493) FISCAL NOTE: Effect on 'Local Government: Yes.

Effect on the St8.tc or on Industrial Insurance: No.

ExpLANAnON-Matter in ltaUc6 ia new; matter in brackets [ ] II materlal to be omitted.

AN ACT relating to justices' courts; transforming them to courts of record; and providing otber mattcfl'I properly relating thereto.

The People of the State of Nevada, represented in Senate and Assembly, do enact as joUOW$:

1 SECTION 1. Chapler 4 of NRS is hereby amended by adding thereto 2 the provisions set forth as sections 2 to 5, inclusive, of this act. 3 SEC. 2. Proceedings in each justice's court must be recorded by using • sound recording equipment except where the board at county commis-5 sioners of the county in which the court is located authorizes, and the 6 justice of the peace appoints, a certified shorthand reporter to take down 7 the proceedings in the same manner and with the same effect as in a 8 district court. 9 SEc. 3. 1. Each justice at the peace shall appoint and, with the

10 apprCNal of the board of county commissioners, fix the compensation of 11 a suitable person, who need not be a certified shorthand reporter and 12 may have other responsibilities-in the court to operate the sound record-13 ing equipment_ The person so appointed shall subscribe to an oath that 14 he will so operate it as to record all of the proceedings_ 15 2 _ The iU$tice of the peace may design"te the same or another per-16 son to transcribe the recording into a written transcript. The person so 17 designated shall subscribe to 'an oath that, he has correctly· transcribed it_ 18 The transcript may be U$ed for all purposes for whkh transcripts are 19 used and is oubject to correction it' the mme manner as other transcripts.. 20 SEC_ 4_ 1. If the person designated to transcribe the proceedings is: 21 (a) Regularly empl"yed as a public empl.oyee, he is not entitled to 22 additional compensation for preparing the transcript. , 23 (b) Not regularly emplayed as a public employee and not a certified 24 shorthand reporter, he is entitled to such campensation for preparing 25 the transcript as the board of county commissioners determines. '

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1 (c) A certified shorthand reporter, he is entitled to the same fees for 2 preparing the transcript as in the district court. 3 2. The fees for transcripts and copies must be paid by the party 4 ordering them. In a civil Case the preparation of the transcript need not 5 COmmence until the fees have been deposited with the clerk of the court. 6 SEC. 5. The sound recording of each proceeding in justice's court 7 must be preserved until at least 30 days after the time for filing an appeal 8 expires, If no appeal is taken. the justice of the peace may order the 9 destruction of the recording at any time after that date. If there is an

10 appeal to the district court, the sound recording must be preserved until 11 at least 30 days after final disposition of the case on appeal, but the 12 ,justice of the peace may order the destruction of the recording at any 13 time after that date. 14 SEC. 6, NRS 1.020 is hereby amended to read as follows: 15 1.020 The supreme court, the [several] district courts, and [such 16 other courts as the legislature shall designate, shall be] the justices' 17 courts are courts of record. 18 SEC. 7. Chapter 189 of NRS is hereby amended by adding thereto 19 a new section which shall read as follows: 20 I. Except as provided in subsection 2, if the district court finds that 21 the transcript of a case which was recorded by sound recording equipment 22 ' is materially or extensively defective, the case must be returned for retrial 23 in the justice's court from which it came. 24 2. If all parties to the appeal stipulate to beinlLbound by a particular 25 transcript of the proceedings in the justice's court, or stipulate 10 a 26 particular change in the transcript, an appeal based on that transcript as 27 accepted or changed may be heard by the district court without regard 28 to any defects in the transcript. 29 SEC. 8. NRS 189,030 is hereby amended to read as follows: 30 189,030 I. The' justice [must,] shall, within 10 days after the 31 notice of appeal is filed, transmit to the clerk of the district court the 32 transcript at the case, all other papers relating to the case and a certified 33 copy of his docket. 34 2. The justice shall give notice to the appellant or his attorney that 35 [all such papers] the transcript and all other papers relating to the case 36 have been filed with the clerk of the district court. 37 3. If the district judge so requests, before or after receiVing the 38 record, the justice of the peace shall transmit to him the sound recording 39 of the case. 40 SEC. 9. NRS 189,050 is hereby amended to read as follows: 41 189.050 An appeal duly perfected transfers the action to the district 42 court [for trial anew.] to be judged On the record. 43 SEC. 10 .. NRS 266,565 is hereby amended to read as follows: 44 266.565 1. The practice and,proceedings in the municipal court 45 shall conform, as nearly as practicable, to the practice and proceedings 46 of justices' courts in similar cases [.] , except that an appeal perfected 47 transfers the action to the district court for trial anew. The municipal 48 court shall be treated and considered as a justice's court whenever the 49 proceedings thereof are called into question.

•

3-

1 2. The papers and pleadings filed in the municipal court and process 2 issuing therefrom shall be entitled "In the Municipal Court of the City 3 of ____________________ .. __________________ ."

4 3. In all actions for the violation of any ordinance, it shall be suffi-5 cient if the complaint refer to the title and section of the ordinance under 6 which such action is brought. 7 4. All actions brought to recover any fine or to enforce any penalty 8 under any ordinance of any city shall be brought in the corporate name 9 of the city as plaintiff; and no prosecution, recovery or acquittal for the

10 violation of any such ordinance shall constitute a defense to any other 11 prosecution of the same person for any other violation of any such ordi-12 nance, although the different causes of action existed at the same time, 13 and if united would not have exceeded the jurisdiction of a justice's court. 14 SEC. 11. NRS 189.040 and 189.080 are hereby repealed. 15 SEC. 12. This act shall become effective on January I, 1980.

" t .

Sena'e Bill No. 267-Comm!tteo',,",ludiciary

, CHAPTER_ft?5:~""· . . ~, . AN Acr :relating to- justic4s· courts; transfollhihg them to C01lrtl\ of IIeCOnJ; and

providing other maUcn properly relating tbereto.

The People of the State of Nevada, represented in Senate "aniJ Assembly, . do enact as follows: ," . . , ".

SI!CTION' 1. Chapter 4 of.NRS is hereby amended by adding-thereto the provisions set forth as sections 2 to 5, inclusive, of this act.

SEC. 2. Proc~edjngs in each iustice's court must be recorded by using sound recording equipment except where the board of county commis­sioners. at the county in Which the court is located· authorizes, and the justice of the peace appoints, a certified sholthand reporter to take down the proceedings in the same manner and with the same effect as in a district court.

SEC. 3. 1. Each justice of the peace shall app(!int and, with the approval of the board of county commissioners, fix the compensation of a suitable person, who need not be a certified shorthand reporter and may have other responsibilities in the court to operate the sound record· ing equipment. The person so appointed shall subscribe to an oath that he will sa operate it as to record all of the proceedings.

2. The justice of the peace may designate the same or another per­SOn to transcribe the recording into a written transcript. The person, so designated shall subscribe to an oath that he has correctlY transcribed it. The transcript may be used for all purpous for which transcripts are used and is subject to correction in the same manner as other transcripts.

SEC. 4. 1. If the person designated to transcribe the proceedings is: (a) Regularly employed as a public employee, he i. not entitled to

additional compensation jor preparing the transcript. (b) Not tegularly employed as a public employee and not a certified

shorthand reporter, he is entitled to such compensation for preparing the transcript as the board of county commis.siorlers determines.

(c) A certified shorthand reporter, he is entitled to the same fees for preparinff the transcript as in the district court.

2. The fees for transcripts and copies must be paid by the party ordering them. In a civil case the preparallon of the transcript need not commence until the fees have been deposited with the clerk of the court.

SEC. 5. The sOllnd recording of each proceeding in justice's court must be preserved until at least 30 days atter the time for filing an appeal expires. If no appeal is taken, the jllstice at the peace may order the destruction of the recording at any time atter that date. 1/ there is an appeal to the district court~ the sound recording must be preserved until at least 30 days after final disposition of the ca,e on appeal, but the justice of the peace may order the destmetion of the recording at any time after that date.

SEC. 6. NRS 1.020 is hereby amended to read as follows ~ 1.020 The supreme court, tiii [several] district courts, and [such

other courts as the legislature shall designate, shall be] the justices' courts are courts of record.