In a rare ruling that could have national implications, a state judge in Wisconsin has been disciplined for having a close friend in Chicago draft legal opinions she subsequently delivered from the bench.
The case raises the complicated question of whom judges may consult in making their decisions. And it comes at a time when judges are facing increasingly burdensome caseloads and coping with ever-more-complex law.
A 5-2 majority of the Wisconsin Supreme Court on July 1 found Milwaukee County Circuit Judge Louise Tesmer guilty of judicial misconduct and ordered that she be reprimanded, the least severe punishment it could have given. The court found that law professor John McCormack of Loyola University Chicago drafted at least 32 decisions for his friend during weekends when he would visit her.
The ruling reflects an evolution in judicial ethics codes and is likely to result in further changes to Wisconsin’s rules that could well affect other states too.
The court acknowledged that the rules governing who can help judges formulate their opinions are unclear enough that Tesmer believed she was doing nothing wrong–although it said she should have known it was improper.
Neither Tesmer nor McCormack could be reached for comment. But the judge issued a statement through her lawyer saying, “The Supreme Court’s decision confirms that (1) I acted in good faith, (2) I made each decision in every case, (3) Professor McCormack served as a volunteer law clerk, and (4) the rules were not clear.”
Although the Wisconsin code has since been revised to remove some of the ambiguity, the justices indicated that further clarification is needed.
Judges may discuss pending cases with other judges, and clerks and interns, who frequently draft their bosses’ opinions. And judges can read law review articles or attend seminars by law professors on legal questions relevant to the cases they are working on.
But most ethics codes bar communication about pending cases, outside the presence of the litigants, with anyone other than court personnel.
“I’m not aware of any state supreme court decision dealing with an issue quite like this,” said Judge V. Robert Payant, president of the National Judicial College, a training institution for judges in Reno.
“Maybe the Wisconsin clarification will influence what other states do,” Payant said.
The problem is not confined to state courts. Judge Susan Webber Wright, the U.S. district judge who heard Paula Jones’ sexual harassment claim against President Clinton, was blasted earlier this year for discussing pending cases with her husband, University of Arkansas law professor Robert Wright.
Legal experts pointed out that the code of conduct for federal judges specifically prohibits them from communicating privately about the merits of a case with lawyers, law teachers and others who are not participants in a proceeding. It also explicitly directs judges not to allow family relationships to influence their judicial judgment.
Many state codes are less explicit. In the case of Wisconsin, the code in effect until last year contained a blanket prohibition saying “a judge should not permit private interviews, arguments, briefs or communications designed to influence his or her decision” and “shall not initiate, permit, engage in or consider ex parte (one-sided) communications concerning a pending or impending action or proceeding.”
On Jan. 1, 1997, the code was revised to make it clear that the prohibition did not apply to fellow judges or other “court personnel.” The revision also provided a safety net for judges uncertain about whose help is permitted: Under the 1997 code, judges may consult with a “disinterested expert” on the law as long as they notify the parties and give them an opportunity to respond. That provision is found in most state codes today, but not in Illinois’.
The majority opinion in the Tesmer case indicated that the revisions still leave room for ambiguity concerning the “court personnel” with whom a judge may consult. The court said it would propose a new rule that judges must post the names of staff–law clerks, interns and others–who participate in the judge’s decision-making process.
Thomas Fitzgerald, presiding judge of the criminal division of Cook County Circuit Court, said his colleagues are taught that what Tesmer did is a violation, even though the professor did not know any of the parties and had no interest in the outcome of the cases. But it’s not intuitive, Fitzgerald said: “If you hadn’t been made aware, you’d probably think it was just an effort to fully prepare yourself.”
Unless, of course, you did it 32 times. “Then it’s not simply trying to resolve an issue of law,” Fitzgerald said, “but potentially abdicating your responsibility.”
The Illinois Judicial Inquiry Board said there were no cases in this state that address the issue. Nevertheless, the rules may be clearer here than in some other states. Unlike Wisconsin, Illinois does not allow judges to consult with disinterested experts outside the judicial system, even after giving notice to the parties. And a commentary that accompanies the Illinois Code of Judicial Conduct specifies that the ban on discussing a case with outsiders includes lawyers and law teachers.
Tesmer’s lawyer, Ralph Weber, argued that she should not have been sanctioned for violating ambiguous rules.
“Dissents by respected judges tell us that reasonable people can differ about the meaning,” he said. “No judge has ever been disciplined for this type of conduct under the rules that were in effect at the time.”
Under those rules, Weber said, it was not uncommon for judges to get help from law professors. The old rules were based on a 1924 model code that was subsequently revised, but Wisconsin did not adopt the revisions until last year.
Tesmer and McCormack, both 55, have known each other since their high school days in Milwaukee, according to James Alexander, executive director of the Wisconsin Judicial Commission, which brought the disciplinary charges. Tesmer has been a judge for nine years.
The conduct in question, which occurred from 1993 to 1996, was revealed by a court reporter who was asked on Mondays to type opinions written over the weekend in McCormack’s handwriting.
McCormack has not been disciplined, although a lawyer Illinois may not assist a judge in conduct the lawyer knows is improper.
