dissenting.
Nine years ago this court held in Thomas v. Justice Court of Washakie County, Wyo., 538 P.2d 42 (1975) that a preliminary hearing conducted by a nonlawyer justice of the peace does not abridge a criminal defendant’s fundamental right to due process of law. I dissented in that case on the ground that the defendant’s constitutional right to representation by an attorney during the preliminary hearing encompasses a right to a judge trained in the law and equipped to respond to the attorney’s legal arguments. I also dissented in that case because of my concern that the majority position portended an unacceptable and impermissible erosion of the criminal defendant’s rights to fair treatment in the courts of this state. I harbored those concerns notwithstanding the majority’s assurances that a preliminary hearing differs significantly from a misdemeanor trial and, therefore, a nonlawyer judge at the hearing satisfies due-process demands. The court said:
“ * * * We think there is an important and obvious distinction [between a misdemeanor trial and a felony preliminary hearing]. The finding of guilty in the misdemeanor trial (subject only to a right of appeal which is specifically rejected by the California court [in Gordon v. Justice Court for the Yuba Judicial District, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974) ] as being a ready source of relief) is a final judgment; the finding of probable cause after the preliminary hearing determines only the propriety of a trial, complete in every way with every protection that the constitution, laws and decisions of this state have been able to develop. The problems which the California court lists as presenting difficult legal questions in misdemeanor trials necessitating the presence of a lawyer-justice * * * are inapplicable to preliminary examinations wherein procedures are historically more informal and the only question is whether there is probable cause to conclude that a crime has been committed and that the accused has committed it.” (Emphasis added.) 538 P.2d at 47.
Today a majority of this court hold that the protections provided by our Constitution, laws and judicial decisions do not include a determination of guilt before a lawyer justice of the peace, even though the possibility of a jail sentence would entitle the defendant to representation by a lawyer. The majority approve the lay justice system because (1) justices of the peace receive a fixed salary, independent of fines collected, (2) court proceedings are recorded, and (3) the defendant has a right to appellate review of the record. While I agree that these factors contribute to a fair trial, I fail to see how they address the crucial matter of the inconsistency in affording a defendant an attorney to represent him without providing an attorney judge to hear and rule upon counsel’s arguments.
LEGISLATIVE BACKGROUND
Pursuant to Art. 5, § 1 of the Wyoming Constitution,1 § 5-4-101, W.S.1977 provides for justice of the peace courts, and in 1978 the legislature mandated the establishment of county courts in counties with populations exceeding 30,000 inhabitants, § 5-5-102, W.S.1977, 1984 Cum.Supp.2 Only individuals authorized to practice law in Wyoming may preside over county *902courts, § 5-5-112, W.S.1977, 1984 Cum. Supp., whereas nonlawyers are eligible to serve as justices of the peace, § 5-4-201, W.S.1977, 1984 Cum.Supp.
Justices of the peace have jurisdiction to hear criminal cases resulting in imprisonment of up to six months in jail and $750 in fines. Section 7-16-101, W.S.1977. If convicted before a justice of the peace, the defendant has a right to an appeal on the record to the district court. Rule 1.03, W.R.A.P.C.L.J.
THE CRIMINAL DEFENDANT’S RIGHT TO A JUSTICE OF THE PEACE TRAINED IN THE LAW
The United States Supreme Court held in Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), that, absent proper waiver,
“ * * * no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
In support of its holding, the Court observed that the legal and constitutional questions raised in a misdemeanor case may be as complex as those involved in a trial for a more serious offense. 407 U.S. at 33, 92 S.Ct. at 2010.
Since, under Argersinger, the accused has a Sixth Amendment right to an attorney who can recognize and raise these complex issues, it follows that a fair trial must also include a judge learned in the law who can understand the attorney. That is the critical issue in this appeal as it was in Thomas v. Justice Court of Washakie County, supra, 538 P.2d at 54:
“If ‘erroneous or improper prosecution’ (Coleman [v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 287 (1970) ] takes place and the lawyer is present to call these intricate matters to the court’s attention, must not there be someone learned in legal matters present to hear the call? Isn’t that the other half of giving the defendant the full measure of his due process protection? ”
A justice of the peace presiding over a criminal trial faces many difficult legal problems. He is expected to conduct jury trials since our state Constitution entitles the accused to a trial by jury.3 In these cases he must determine the proper scope of voir dire, the prejudicial effect of evidence, the propriety of the attorneys’ arguments, and the adequacy of instructions. In all trials he must resolve questions pertaining to tactics, admissibility of evidence and procedure.
In connection with the acceptance of guilty pleas, the justice of the peace must extensively examine the defendant to insure that the plea is voluntary and supported by facts, and that the defendant understands the nature of the charge against him, the possible penalties and the waiver of constitutional rights. Rule 9, W.R.Cr.P.J.C. Sentencing decisions made by all judges, including justices of the peace, must include consideration of probation as an alternative to incarceration, the nature of the offense, and the character of the defendant, and should reflect the purposes of punishment. Wright v. State, Wyo., 670 P.2d 1090 (1983); Daniel v. State, Wyo., 644 P.2d 172 (1982).
Before we ask the justice of the peace to perform these functions with these high human stakes, I feel that he should have the advantage of an educational background which would permit him to discharge his professional duties confidently, accurately and with full protection to the accused. As presiding judge he bears the brunt of the responsibility for providing the accused a fair trial. I would hold that it must be presumed that he cannot fulfill this responsibility unless he is learned in the law and able to provide professional leadership, guidance, and judgment.4 For *903an excellent analysis of the presiding judge’s role in insuring a fair trial, see Gordon v. Justice Court for Yuba Judicial District of Sutter County, 115 Cal.Rptr. 632, 525 P.2d 72 (1974).
I cannot agree with the majority that the right to an appeal on the record from a justice court judgment satisfies the requirements of due process. The defendant has a right to a fair and proper proceeding in the first instance. I would adopt that said by the California Supreme Court in Gordon v. Justice Court for Yuba Judicial District of Sutter County, supra, 525 P.2d at 77:
“ * * * ‘Availability of appeal often falls short of sufficient protection [of a defendant’s fundamental right to a fair trial], since “the burden, expense and delay involved in a trial render an appeal from an eventual judgment an inadequate remedy.” (Brown v. Superior Court (1949) 34 Cal.2d 559, 562, 212 P.2d 878.)’ * * * ” Quoting from Maine v. Superior Court of Mendocino County, 68 Cal.2d 375, 378, 66 Cal.Rptr. 724, 726, 438 P.2d 372, 374 (1968).
The observations in this dissenting opinion may not rightfully be interpreted as a criticism of the work of the lay justices of the peace in this state, for I know at first hand their excellent efforts in the criminal-justice system. The issue, however, is whether due process requires that those presiding over criminal trials possess a background in the law. I would repeat in this regard my dissenting remarks in Thomas v. Justice Court of Washakie County, supra:
“It would have done Einstein no good to have explained his theory of relativity to me. I would not have understood it. I am not equipped to understand it. The same, I feel, applies to a layman justice of the peace in preliminary hearing matters in Wyoming. It is no criticism of the justice of the peace — to the contrary — it is a criticism of the system which places such a heavy burden of responsibility upon untrained people in an area of human relations that demands training and professionalism.” 538 P.2d at 54.
I realize that a holding in line with my interpretation of the law would upset the justice of the peace program in the sparsely populated counties of this state. However, as I observed in Thomas v. Justice Court of Washakie County, supra:
“ * * * The accused’s constitutional rights are the paramount issue even though an unsettling of the established order of things may be the result.” 538 P.2d at 56.
Since the right of the accused to an attorney by his side encompasses the right to a trial conducted by a judge educated and experienced in the law, I would have reversed and permitted the legislature to establish a criminal judicial system in line with the requirements of due process.
. Article 5, § 1 of the Wyoming Constitution provides:
"The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time."
. County court systems are optional in counties having a population under 30,000. Section 5-5-103, W.S.1977, 1984 Cum.Supp.
. Article 1, § 9, Wyoming Constitution.
. The Third Circuit Court of Appeals in Lecates v. Justice of the Peace Court No. 4 of the State of Delaware, 637 F.2d 898, 910 (3rd Cir.1980), observed:
" * * * ^ judge devoid of training in the complexities of the law, the subtleties of legal reasoning, or the methodology of legal re*903search may tend to decide each matter according to personal predilection or assumption. The command of statutes and the teachings of precedents may well be ignored in such a process.”