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Why a lack of lawyers likely means a continuation of non-attorney judges in state courts

August 10, 2022

By Bill Raftery

When most people think of judges, they often assume that they are attorneys. To this day in a majority of states, being a lawyer is not a pre-requisite for a judgeship. The reasons for this go back into U.S. history, but in essence, can be laid at the feet of King Edward III in England in 1361 who created the position of “justice of the peace.” Whereas every other European nation going back to the Romans made use of trained legal professionals for a judgeship, only England used “lay” judges. England’s colonies, later U.S. states, kept this practice. Up until just recently, a majority of states allowed non-attorney judges and it is still common in a large percentage of states.

The arguments in favor of non-attorney judges in state courts vary but early on relied on a critical question of numbers:  there simply were not enough lawyers to sit as judges. Justices of the peace therefore could be used for smaller civil cases and minor criminal offenses, leaving higher courts to deal with other matters. At a time when such judges often rode circuit and therefore might not be in an area for months at a time, such courts provided the only means for any kind of judicial proceeding in the intervening months.

That said, over time as cases became more complex, more states began to shift away from such individuals and amend their state constitutions or laws to require judges to be attorneys. Nevertheless, at least 27 states continue to allow for non-attorney judges with several states (Connecticut Probate Court and Indiana City and Town Courts) allowing currently sitting non-attorney judges to be re-elected but requiring their successors to be lawyers. A reason often cited in the last several years is a lack of attorneys in more rural areas of the state such as Colorado, New York, and Washington.

Is your state considering ending the practice of non-attorney judges? Share your experiences with us at or call 800-616-6164. Follow the National Center for State Courts on Facebook, Twitter, LinkedIn and Vimeo.


Courts Allow Non-Attorney Judges



Probate (most counties)

Select judges in Jefferson and Montgomery Counties must be attorneys


Justice of the Peace, Municipal

Some municipalities may require judge be attorney


County (most counties), Municipal

Some counties may require judge be attorney


Justice of the Peace, Alderman’s (most cities)



Magistrate, County Recorder's, Probate (counties below 96,000), Municipal (judges starting service prior to 2011)

2011 law requires all Municipal Court judges be attorneys. Non-attorney Municipal Judges in office as of June 2011 may remain and be re-elected.



Must be attorney in cities of the first class.


Justice of the Peace, Mayors



Orphans’ (most counties)

Must be attorney in City of Baltimore, Baltimore County, and Prince George's County.


All courts



Municipal (cities below 10,000)



Municipal (cities below 7,500)



Justice of the Peace, City



Justice of the Peace (depending on population of county & township served), Municipal

Justice of the Peace judges elected/appointed before October 1, 2005 may remain and be re-elected.

New Mexico

Magistrate, Municipal, Probate


New York

Town & Village


North Dakota

Municipal (in cities less than 5,000)






County, Justice, Municipal



Magisterial District


South Carolina

Magistrate, Probate, Municipal


South Dakota





Some municipalities may require judge be attorney


Justice of the Peace, Municipal, Probate (judges starting service prior to 2011)

If municipal court is a court of record, must be an attorney.



Judges of Cities in the First Class must have a law degree.

West Virginia

Magistrate, Municipal