Sensitivity Training for Judges?
Our system of judicial accountability seems to rely very heavily on the judicial selection process itself. That is, our system seems to assume that the very fact that a person is selected a judge must mean that judge is a good person and will not abuse his or her office. I have found, however, that judges are merely human and that the mechanisms in place for judicial accountability are few and ineffective.
One of those mechanisms is the substitution-of-judge-for-cause statute, found in the Code of Civil Procedure as enacted by the state legislature. Another is the Judicial Inquiry Board, a body created by the Illinois Constitution. I explained my experience with the statute in Chapter 2: When a judge can impose a monetary fine against me for filing a substitution-of-judge-for-cause motion, and the judge hearing the case waits months to do so and then dismisses my concerns with the comment that the decision was “easy,” I’d say that statute doesn’t carry much punch, and might as well not exist. I have filed several complaints with the Judicial Inquiry Board, all without result or even any feedback on how my concerns were taken.
The result is that judges enjoy almost absolute immunity from anything but the most serious and open misconduct. They have nothing to fear if they show arrogance, anger, or even prejudice on the bench, as long as the thinnest of excuses can be found for it.
I think judges should be subject to discipline for showing undue anger or disrespect for attorneys or parties in the courtroom.
I was once involved in an all-day hearing that was running beyond the courthouse’s closing time. The opposing side was represented by two female attorneys. One of them got up and started to leave the courtroom during the hearing. The presiding judge, Dan Flannell, blew his top. He demanded where she was going. She explained that she had a child to pick up from day care. The judge belittled her mercilessly and (as I recall, but I am not sure) made her stay until the end of the hearing.
One of his comments was that in the 20 some years he’d served on the bench, he’d never seen any such disrespectful and rude conduct by an attorney in his courtroom. I usually roll my eyes mentally at such comments, which I often hear from other attorneys as well – as if the very fact that one person has not experienced something makes it outrageous.
In my view, the judge’s disrespect for this attorney far outweighed any disrespect she unintentionally showed to him. All the judge had to do was inquire where the attorney was going, remind her that he preferred it that she ask his permission to leave before doing so, and then let her go. There was no need to embarrass her in front of her co-counsel, her client, and me.
Judge Flannell also embarrassed me in the courtroom on an occasion when I was trying to help a client and her ex-husband get a child support modification at as little cost to them as possible. He found fault with me for openly representing both of them, even though I had their consent for this. He said there was an inherent conflict of interest in such a situation.
In my view, however, the issue was one of form, not substance, because I could just have well have declared that I was representing only the mother and negotiated the terms of modification with the father as a self-represented party. The truth was that I was helping both sides, and I saw no reason to disguise that fact. I believe Judge Flannell’s anger over this technical matter of form was simply irrational. At the time, I was a candidate for judge in the 2016 as a write-in candidate, and Judge Flannell ridiculed me in open court for having the nerve to think I could sit where he was sitting now. When I tried to answer, he told me I talked too much and that I should shut up and listen for a change. (Throughout my legal career, I feel I have had a tendency to talk too little in court and I have had to make a special effort to assert myself!)
Judge Flannell was selected to replace Judge Shonkwiler as Chief Circuit Judge for the Sixth Circuit in 2012. Shortly thereafter he removed the Piatt County law library’s Westlaw computer, even though the county continued to pay $500.00 per month for that service. I know, because I regularly used that computer and spoke to the Westlaw representative myself. It was several months before I could get the computer returned and restore the service the county had been paying for all along.
I consider Judge Flannell to have been a good judge, and that he was generally impartial and fair. Even such judges, however, have their lapses, and what concerns me is that they are often not even aware of these lapses. That is why, I believe, mechanisms more effective than the SOJ-for-cause statute and the Judicial Inquiry Board are needed to deter judges from taking advantage of their positions to show anger or disrespect or engage in other relatively minor forms of misconduct that nevertheless have negative consequences on the administration of justice. This deterrence need not be removal from office – to me, the formal and public reprimand of judges is not used nearly often enough.
Another example of the anger issue: At a hearing before Judge James Coryell in Macon County, I brought to his attention that I was having trouble hearing the witness in his cavernous but mostly empty courtroom, because of the echoes. His response was to raise his voice and yell “Well can you hear me now?” or something along those lines. I am pretty sure that if I ever serve as a judge, I would try to accommodate concerns such as this instead of getting angry at someone because of his or her physical shortcomings. In this case I had to move to the jury box so I could hear the witness better, but this kept me from having access to the written materials I had laid out on the attorney’s table, to my client’s disadvantage.
On being heard in court: I also note that many judges do not take reasonable steps to ensure the proceedings can be heard by all participants. Almost all courtrooms have public address systems, and yet many judges don’t use them. I have been in courtrooms in Shelby and Logan counties in which the judges use the electronic public address systems well and there is no question of anyone being able to hear or be heard. But in other counties, including Piatt and DeWitt, I cannot tell whether the PA system is on or not. Many judges have very soft voices, or do not make any effort to speak up, even when I tell them I am having trouble hearing them. This, in my opinion, is another example of judges showing disrespect to attorneys and parties.
Returning to the issue of judicial accountability: I think my concerns with Judge Freese (Chapter 2, above), should have been taken more seriously. At the very least, a judge should not be able to impose monetary sanctions against an attorney just for filing a motion to substitute out that judge for cause. Such motions should be encouraged, and only the most egregiously frivolous and bad faith complaints should be subject to sanctions. That they are not encouraged is a virtually unwritten rule imposed by judges to protect their comrades – a culture of favoritism.
I also think judges should be penalized if they take too much time to decide cases, as Judge Webber did (see Chapter 6). If the judge does not have time for a case, he or she should recuse himself or herself so the case can be given to a judge who does have time. If the judge does not handle a case expeditiously, and it has an effect on the outcome, I believe that judge should be personally liable for monetary damages.
These changes in the law would not affect most judges, because most judges do not make these mistakes. I hope I have shown, by relating with you these experiences, that I am aware of these shortcomings of judges and that I would not make them if I ever occupy the bench.