Oregon State Bar Bulletin — JANUARY 2004

Parting Thoughts
Back to the Future
By Jad B. Lemhouse

The circuit court-based trial court system in Oregon is in crisis. (See 'A Case of Déjà vu?' November 2003). Demand for trial court services continues to increase. An ever- growing burden to the state, it costs the general fund over $1 million per judge per year to operate the circuit courts, including the cost of indigent defense. That cost grows significantly each biennium.

A partial solution to this crisis has been present in Oregon since long before statehood: Justice of the Peace Courts or 'justice courts.' Why?

1. Justice courts have concurrent jurisdiction with circuit courts over many of the most numerous kinds of criminal and civil actions: violation and misdemeanor offenses, small claims and FED (landlord/tenant) actions and civil actions where the damages sought do not exceed $5,000. The legislature can amend that jurisdiction at will.

2. Justice courts do not require any appropriation or expenditure from the state. Though they are state courts, the counties pay all their costs; the justice courts provide a stream of revenue to the state at no cost, in fact.

3. Justice courts cost less than circuit courts to operate. No bureaucratic tail absorbs resources intended for the justice courts; justice of the peace compensation is far below that of circuit judges in most counties, and court staff compensation levels are set according to local community standards, not statewide standards. Court facilities tend to be very simple and functional.

Historically, courts of limited jurisdiction, especially justice courts, have been an essential element of Oregon’s legal system. Under territorial and early state statutes, a justice of the peace was elected in every precinct. However, beginning in the late 1950s, many justice of the peace courts were abolished and replaced in county seats and other cities by district courts.

Since district courts and justice courts had essentially the same jurisdiction, and since at that time the counties operated all three of the trial courts (circuit, district and justice), banishing justice courts where the district court held regular sessions was probably a good idea. (Why have two courts doing essentially the same thing in the same city?)

District courts ceased to exist in January 1998. The ban on justice courts in county seats and other cities continues. Today, Oregon law allows justice courts only in the county seats of Tillamook County in western Oregon and 7 of the least populated counties in eastern Oregon. Only 20 of Oregon’s 36 counties have justice courts currently. (Union County is establishing one; it is scheduled to become active this month.)

The once robust and numerous base of courts of limited jurisdiction, which resolved the most numerous kinds of cases in the system, has been nearly eviscerated by a policy that focuses all resources on the most expensive of the trial courts, the circuit courts. There are now more circuit court judges (169) than there are justices of the peace (30, including Union County) and municipal judges (121). In the five years ending in December 2002, one of every five municipal courts closed or ceased operation. When it becomes active, the Union County Justice Court will be just the second justice court added to the trial court system in the past 15 years. There has been no net gain, however, as two justice courts were closed during that period.

Unless and until Oregon rebuilds a strong, effective base of justice courts, the trial court system will continue to be increasingly dysfunctional (especially in urban counties) and increasingly expensive. Every case filed in a justice court is one less case filed in a circuit court. Every criminal action (violation or misdemeanor) filed in a justice court not only reduces the circuit court caseload, it also produces a revenue stream to the state at no cost to the state.

The plain fact is that the average justice of the peace pays about as much money into the criminal fine and assessment account (into which all trial courts pay fines and assessments from criminal actions) as does the average circuit court judge. The cost to the state general fund of the average justice of the peace is nothing; the average circuit court judge costs the state over $l million per year.

Using circuit court judges to adjudicate any matter within the jurisdiction of a justice of the peace is like driving nails using a gold-plated hammer when plain steel will do just as well: It is economically absurd and fiscally irresponsible. Only in government can that kind of waste long survive; in the private sector it quickly leads to bankruptcy, reorganization or both.

At least two relatively small hurdles and one huge one must be overcome if justice courts are to play a significant role in solving the trial court crisis: the statutory barriers to locating justice courts in particular cities must be removed; and, counties must have financial incentives for establishing and continuing justice courts. There are legislative ways to create financial incentives that do not require appropriations from the general fund.

The biggest barrier is not recognizing the failure of the 'one universal court system' paradigm and not recognizing that the old 'pyramid model' of multilevel courts is far more cost-effective and efficient in delivering court services. We really do have to go 'back to the future' to make court services as effective, efficient and available to Oregonians as they once were.

Historically, justice courts and circuit courts always worked in tandem, the justice courts dealing with the most common and most numerous criminal and civil matters, the circuit courts dealing with the more serious criminal and civil matters. If justice is to be effectively and efficiently available to all Oregonians at an affordable cost, this is how it ought to be in every Oregon county again.

© 2004 Jad B. Lemhouse

Jad B. Lemhouse is justice of the peace, Linn County Justice Court (District 4A), Harrisburg, Ore., the 'Central Linn Justice Court.'

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