Utah Bar Journal

For the majority of Utahns, perceptions about the judicial system are being created in the justice courts. Additionally, what an individual experiences in justice court is likely to affect the way he or she views the judicial system as a whole. Many individuals do not know the difference between a justice court and a district court, or between a city attorney and a district attorney. As a lawyer, we are a district court judge, a justice court judge, or a court clerk, but to most individuals we are all lumped together as the “system.” This is a system that can be complicated and intimidating and that the average Utahn knows little about.

Because of the important role justice courts play, the actual quality as well as the public perception of those courts should be a topic of serious concern to the Bar.

Justice Courts and the Bar
The experience of the average resident is different than the experience of most members of the Bar. There are a small number of prosecutors and defense attorneys that practice heavily in justice courts. Additionally, some attorneys in civil practice may occasionally find themselves handling a small claims action in a justice court. However, for the majority of attorneys, their primary contact with the court system is in the district courts. Their experience in the justice courts is minimal, at best. This results in the justice courts being overlooked, to some extent, by a majority of the Bar.

The result of all of this is a vastly different experience of the judicial system by lawyers and the public. The face of the judiciary for many lawyers is not the justice courts, but may be the Matheson courthouse or the thirty judges who preside in the Third District. Include the training, experience, and comfort members of the Bar have with the courts, and perceptions of the judicial system are going to be very different among these two groups.

We also cannot ignore the elephant in the room. Some members of the Bar look down upon, or even have contempt for, the justice court system. Even those who do not have such disdain or contempt still may not give the justice courts the attention and importance they deserve. There may be many reasons for this attitude. One reason that has been expressed to this author on prior occasions is the fact that justice court judges are not required to be lawyers and many serve part-time.2 Additionally, procedures and practices may vary significantly from justice court to justice court, and there is little perceived oversight due to a lack of having a “record.” Whether these issues create real concern has been the subject of much study and legislation (enacted and not). However, whether or not these concerns are justified, the fact is that the “perception” is there. If the Bar has a negative perception of the justice courts, how can we expect the public’s perception to be any better?

The public’s perception of the judicial system is being created in the justice courts. If we truly want to improve the public’s opinion of the judicial system as a whole, we need to focus more time and energy on improving the quality and image of the justice courts. This must start with the Bar. Justice courts truly are the “face of the judiciary” for most Utahns.

Justice Courts as Revenue Generators
In the last year justice courts have been portrayed by the media as revenue generators for the municipalities they serve. However, this is nothing new. This criticism has been going on for years. Is this a fair criticism?

According to the Justice Court Revenue Report for fiscal year 2010, justice courts statewide collected $86,503,361.32. First, of the 584,909 cases heard by justice courts, only 19,543 were small claims cases. See Utah State Courts, http://www.utcourts.gov/stats/files/2010FY/justice/0-Statewide.pdf . The remainder (565,366) were criminal or traffic cases, where fines may be imposed.3 See id. This averages out to only $152.73 in fines per criminal/traffic case filed.

As a society we have determined that fines are an appropriate punishment for violation of the law. We abandoned floggings, stocks, and pillories some time ago. Section 76-3-201(2) of the Utah Code provides:

(2) Within the limits prescribed by this chapter, a court may sentence a person convicted of an offense to any one of the following sentences or combination of them:

(a) to pay a fine;

(b) to removal or disqualification from public or private office;

(c) to probation unless otherwise specifically provided by law;

(d) to imprisonment;

(e) on or after April 27, 1992, to life in prison without parole; or

(f) to death.

Utah Code Ann. § 76-3-201(2) (Supp. 2011).

Further, the Utah State Legislature, through the Utah Code, has set forth the maximum fine amounts that may be imposed for a particular offense (class B misdemeanor $1000, class C misdemeanor or Infraction $750). See id. § 76-3-301 (2008). The legislature has also tasked the Judicial Council with creating a uniform fine schedule, which it has done. See Uniform Fine/Bail Forfeiture Schedule, (July 2001), http://www.utcourts.gov/resources/rules/ucja/appen/c_fineba/FineBail_Schedule.pdf . The schedule states, “It is the intent of the Uniform Fine/Bail Schedule to provide assistance to the sentencing judge in determining the appropriate fine or bail to be assessed in a particular case and to minimize disparity of fines/bails imposed by different courts for similar offenses.” Id. at 1. This schedule is closely followed by judges. In fact, the court’s computer system (Coris) automatically generates the fine amount suggested by the schedule and includes it on the docket for the court’s convenience. The schedule further states that, “The penalty for all public offenses should include a financial sanction as a minimum base from which the judge may determine the total sentence, dependent upon aggravating and/or mitigating circumstances of an individual case.” Id.

Based on the forgoing, fines are an appropriate and minimum sanction for those who violate the law. This has been established by the Utah Legislature, not the justice courts. Maximum amounts, as well as uniform and recommended amounts, have also been established; again, not by the justice courts. It is also not the justice courts that are citing, or prosecuting, these individuals. Nevertheless, it is the justice courts that take the majority of the criticism on this issue.

Of the fine amounts actually imposed by the justice courts, approximately one-third of that money is not kept by the justice courts or the municipality. Section 78A-2-601 of the Utah Code provides that all criminal convictions (including moving traffic violations) be subject to a $33 security surcharge. See Utah Code Ann. § 78A-2-601(1) (Supp. 2011). Section 51-9-401 of the Utah Code further provides that a surcharge of 90% be paid on felonies, class A misdemeanors, and non-traffic class B misdemeanors, and a 35% surcharge be paid on all other criminal/traffic offenses. See id. § 51-9-401(1)(a)(b)(i), (ii). In other words, a $1000 fine on a class B misdemeanor becomes $1933. Pursuant to these statutes, a substantial portion of the money collected by local justice courts goes to the State, not the municipalities they serve.

According to the Justice Court Revenue Report for fiscal year 2010, of the $85 million collected, $28 million was for surcharges that were being collected by the State, and not kept by the local municipality. Where does the remainder of that money go? That $57 million is used to operate the 134 city and county justice courts around the state. (In comparison, the State of Utah’s 2010 budget was $4.8 billion. The State Court system operated on a $130 million budget.)

Benefits of Justice Courts
Article VIII of the Utah State Constitution established the “Judicial Department” or the Judiciary in the State of Utah. See Utah Const. art. VIII, §§ 1-16. As we all know from elementary school, the judiciary is an independent, third branch of government. Article VIII, section 1 provides for the creation of “[c]ourts not of record.” See id. § 1. These courts not of record have been created, and are known as the justice courts. See Utah Code Ann. §§ 78A-7-101, et seq. While they may be operated by municipalities, justice courts are part of the independent, judicial branch of government. This principle is sometimes confused not only by the public, but by the municipalities and even the courts themselves. While justice courts may share buildings, staff, and funds with the rest of the city’s operations, it should always be remembered that justice courts are a part of the independent, judicial branch of government.

Justice courts are created and operated by municipalities largely as a service and a convenience for their citizens. If not for justice courts, an individual charged with a misdemeanor or traffic offense in Sandy, for example, would have to travel to the District Court in West Jordan or downtown Salt Lake City, or to the county justice court in Salt Lake. An individual charged in Bullfrog would have to travel to the District Court in Kanab, 315 miles away, or to a county justice court. By creating justice courts, residents of a community can have their misdemeanor, traffic, and small claims cases heard in the community in which they live.

Justice courts are also specialists. These courts focus on relatively simple traffic, misdemeanor, and small claims cases. The attorneys, judges, clerks, and others working in this system become very familiar and proficient handling these cases. As a result of this proficiency, as well as the less complex nature of the cases, justice courts can handle a great volume of cases in a short period of time. Imagine the outcry if a resident charged with a speeding ticket had to wade through a crowded district court calendar to have their case heard.

Contrary to public perception, most municipalities do not establish justice courts to bring in revenue. Many of the justice courts operating around the State cost the municipality more money than they generate. They are established to better serve the public. The justice courts protect the constitutional rights of citizens throughout the state, in a more convenient location, and with fewer burdens on their time, than could otherwise be done.

Improvement and Reform
The Administrative Office of the Courts, along with the legislature, has taken steps over the last several years to improve the quality and image of the justice courts. In 2007, the Judicial Council submitted several recommendations to further these goals. Some have been implemented by legislation; others have not. The 2007 recommendations that have been enacted include the following:

• The judicial selection procedure has changed. Prior to 2008, when a justice court judge position became available, that position was filled solely by the appointment of the local government authority (mayor, council, etc.). They could appoint whomever they chose. Now, when a position becomes available, municipalities are required to advertise the position. The applicants are screened by a nominating committee, which is made up of members of the Bar, local government representatives, and private citizens. Selection is based upon merit. The nominating commission then forwards the names of the three to five finalists to the mayor/council for the final selection, which is then certified by the Judicial Council. The purpose of this change was to ensure the most qualified applicant was being selected and that it was not just a political favor. This is now the same system used to select district court judges.

• As of 2009, justice court judges began serving six-year terms and were to be subject to unopposed retention elections. This is also the same system used for district court judges. The purpose of this change was to insulate the judge from pressure from the municipality. The judge can focus on making the correct and just legal decision, without worrying about the status of his or her job.

• Justice court judges’ pay has also been determined by statute. It is to be between 50-90% of a district court judge’s salary. Further, the judge’s pay may not be reduced during his or her term in office. Again, this insulates the judge from the municipality, and prevents any concern that the judge will be persuaded by a fear that his or her pay could be affected by his or her decisions.

In the last legislative session, section 78A-7-103 of the Utah Code was amended to require that justice courts record their proceedings (audio only) and maintain those recordings for one year. See Utah Code Ann. § 78A-7-103(3) (Supp. 2011). While these recordings will presumably not be a “record” to use on appeal, it will allow for review of the conduct of justice court judges, as well as of attorneys and defendants. Contrary to what some may think, this is actually a measure welcomed by many judges who feel that such recordings will provide a valuable defense to meritless claims and allegations, as well as provide a tool for self improvement. Additionally, there are some judges (just like in any profession) that likely merit discipline on occasion. These recordings should help to improve (or remove) such judges, and improve the overall performance and perception of the justice courts.

Additional recommendations to improve the quality and perception of the justice courts should be seriously considered. These efforts should not be left to the media, or even to the legislature. Rather, the Bar, including all of its members, should play a larger role in this endeavor. Together, the Bar comprises an impressive group that has practiced in courts at every level of the municipal, state, and federal systems. They have seen good judges. They have seen bad judges. They have seen systems that work and systems that do not. The Bar should encourage efforts to improve the quality and perception of the justice courts. This can take place not only through actual reforms, but also through education. Let’s correct those issues that need to be corrected, and let’s change inaccurate or unfair perceptions through education.

Conclusion: The Face of the Judiciary
Justice courts truly are the face of the judiciary for most Utahns. The justice court system is a good system that provides a valuable service to the citizens of this state. However, no system is perfect. The Bar should lead efforts to improve the quality of the justice courts. The Bar should also lead efforts to improve the public perception of the justice courts through example and education. This is in the Bar’s best interest. As the justice courts are perceived, so too will the entire judicial system be perceived. Let’s put our best face forward.

1. According to the Utah State Court’s website, there are seventy-one district court judges and 108 justice court judges currently serving in Utah. See Utah State Courts, http://www.utcourts.gov/courts/dist/overview.htm ; http://www.utcourts.gov/courts/just/overview.htm .

2. Of the ninety-five justice court judges listed on the Utah State Court’s website, forty-one have law degrees, with twenty-three of those forty-one serving in the Third District. See id., http://www.utcourts.gov/judgesbios/ .

3. In contrast, the district courts received only 73,626 criminal and traffic cases, i.e., cases in which fines may be imposed, during the same time period. See id., http://www.utcourts.gov/stats/files/2010FY/district/0-Statewide.pdf .