Wisconsin Lawyer
Vol. 78, No. 10, October 2005

Why an Independent Judiciary?

by D. Michael Guerin

"Judges ... rule on the basis of law, not public opinion, and they should be totally indifferent to pressures of the times." - Warren E. Burger, Chief Justice, U.S. Supreme Court

Chief Justice Burger's statement epitomizes the ideal judge: independent, dedicated to deciding cases based solely on the law, and unswayed by public opinion or politics. As lawyers, we must recognize that this is the judge's role, regardless of whether we agree with a judge's decision. More important, we must take steps to ensure that members of our communities understand that the applicable law often conflicts with popular or public opinion.

Lawyers Must Support an Independent Judiciary. At the July Board of Governors meeting, the governors adopted a public policy position, at the request of the Bench Bar Committee, joining other bar associations in supporting a national statement by the Beverly Hills Bar Association to help the public recognize that the recent verbal and physical attacks on the nation's judges and jurors jeopardize the independence of the judiciary and threaten the nation's democratic process. The national statement, which is now an ABA position, reads as follows:

"We, the undersigned, hereby express our solidarity in support of the independence of our Nation's judges, juries and courts. While the Constitution guarantees the right to disagree with a decision of a jury or judge, physical attacks, personal threats, demeaning epithets and false and misleading accusations create an atmosphere of contempt and disrespect which is unacceptable in a constitutional democracy. We all need to fear a day when our legal rights are determined by public opinion. The right to be judged by an independent judge or jury must be protected."¹

It is inevitable that judges and their courts will be criticized. Courts, after all, are designed to be guided not by the ebb and flow of popular opinion, but by the wisdom of the past in the form of stare decisis, state and federal constitutions, and state and federal statutes. When political will and judicial wisdom collide, courts are bound to be criticized by some. We are all familiar with pundits of all political parties decrying the decisions of judges. One need only to recall the Terri Schiavo case, in which the judges involved were subjected to attacks from a variety of political and religious groups and others, as well as in the media. These persons are entitled to their opinions and criticisms, regardless of whether I or we personally agree with them.

What concerns me, however, is the fact that more and more often, people are going beyond criticism to personal attacks. Members of our own Wisconsin Supreme Court are being verbally accosted in the communities in which they live. Some of the judges in the Schiavo case endured death threats and had to retain security personnel to ensure their protection. And, even more frightening, some groups applauded the murder in Chicago last March of the husband and mother of a judge in the judge's own home, by a man who sought revenge because of an adverse court ruling.

Clearly, these latter examples are extreme cases; however, if such acts continue, at some point this rising tide of hostility toward the courts will threaten to undermine the independence of our courts. The State Bar Board of Governors joined the national statement because the governors believe that the time to take a stand against extremist attacks on our judiciary is now, before we reach such a point. Intimidation or threats of retribution have no place in our justice system.

It seems obvious that we as lawyers have an obligation to uphold public trust and confidence in our justice system. As officers of the court, we have a responsibility to support the courts rather than take sides against them. We have a responsibility not to take swings at the judiciary no matter how tempting it may be to some of us in the heat of the moment.

We also have an obligation to both our profession and the justice system to stand up for the integrity of the system and those who serve it. That obligation is inherent in the Attorney's Oath² that each of us took as members of the State Bar of Wisconsin. In taking that oath, we solemnly swore to "support the constitution of the United States and the constitution of the state of Wisconsin" and to "maintain the respect due to the courts of justice and judicial officers...." We need to ask ourselves if we are upholding that oath.

Sufficient Resources are Needed to Support the Judicial System. Standing up for the judicial system means more than supporting the judges' mandate to uphold and apply the law. It also means providing judges with sufficient resources to fulfill that mandate. Every taxing jurisdiction in Wisconsin and nationwide is faced with tight budgets and hard decisions about how to allocate resources. In many counties, judges work with very limited resources, including part-time staff or no staff at all.

The issue of resources has recently come to a head in Milwaukee County, for example, where County Executive Scott Walker and Chief Judge Kitty Brennan are at odds over anticipated budget cuts, including rumored cuts in the numbers of court clerks and bailiffs. According to an article published in the Milwaukee Journal Sentinel on Sept. 19, 2005, Mr. Walker criticized the court system as being unconcerned with his tax levy freeze plan, saying the courts "don't care" if he closes parks or if the county fails to serve the poor, because judicial funding is mandated by the state. Judge Brennan reportedly characterized those comments as a "political ambush" based on ignorance of court operations, adding that the county-funded employees are very busy and the courts are operating with a bare-bones staff.

Mr. Walker relied on a study of court activity, created by his own budget staff, which he says showed that county-funded staffers were needed in the courts 86 percent of the time. Both Judge Brennan and Clerk of Court John Barrett dismissed the study's conclusion on grounds that clerks do more than attend hearings when court is in session. They also warned of back-ups in small claims courts and jail overcrowding if sufficient staff is not available to handle the caseload.

Although it may not appear to be within my role to take a position in this debate, I must say that any lawyer who appears in court knows that competent, experienced, full-time court staff is a key component of a well-run judicial system. Court clerks ensure that pleadings and other papers are properly filed and entered into the court's electronic filing system. They ensure that judicial notices and rulings are sent to counsel in a timely manner, a critical task because any delay in processing such documents could adversely affect a client's opportunity to prepare for a hearing or to preserve a client's appellate rights. Perhaps most important, court staff have a working knowledge of the court's caseload and the status of cases. In my personal experience in more than 30 years as a litigator in both civil and criminal courts, continuity of court staff and familiarity with a judge's cases are not luxuries; they are essential to an efficient courtroom.

Lawyers Must Educate the Public. The independent judiciary plays a key role in our system of government, which was intentionally designed to protect its citizens from the sometimes intemperate swings of popular opinion. I truly urge all State Bar members to educate the public about the importance of both the rule of law and an independent and fully-staffed judicial system whenever the opportunity arises. Failing to do so will ultimately put the judicial system at risk, and when the judicial system is at risk, everybody is at risk.

Wisconsin Lawyer