On Thursday, November 14, 2024, The Cap Times reported that Dane County Circuit Court Judge Ellen Berz is facing significant scrutiny from attorneys, who have repeatedly sought to have her removed from handling their cases. Since 2020, attorneys have filed over 420 requests for substitutions from Berz, far exceeding any other judge in Dane County. In comparison, Judge Nicholas McNamara, who received the second most requests, had 185, while most judges had fewer than 100.
This trend of substitution requests serves as a measure of litigant dissatisfaction within Wisconsin’s court system, where accountability mechanisms are less robust than in other states. Marquette University law professor Chad Oldfather noted that these requests, while not perfect indicators, reflect broader sentiments about judicial conduct.
The scrutiny surrounding Berz intensified in October when the Wisconsin Judicial Commission filed a rare misconduct complaint against her. The allegations include an incident from 2021 when Berz reportedly left the courthouse to attempt to arrest a defendant who was hospitalized. A separate incident from 2019 involved claims that Berz did not treat a defendant with the required dignity and courtesy during a court hearing, with a transcript indicating that her sarcastic remarks were evident to the defendant.
Judge Berz has not publicly commented on the allegations or the number of substitution requests she has faced. The Judicial Commission, which is responsible for investigating complaints against judges in Wisconsin, operates with confidentiality regarding the nature of complaints until they reach the state Supreme Court for potential review.
If the state Supreme Court determines that discipline is warranted in Berz’s case, outcomes could range from a public reprimand to suspension or even removal from her judicial position. Jeremiah Van Hecke, the executive director of the Judicial Commission, refrained from disclosing whether there have been prior complaints against Berz or if she had ever been reprimanded, citing state law restrictions.
Historically, complaints against judges have not led to frequent investigations or disciplinary actions. Over the past four years, the Judicial Commission has received more than 3,700 complaints, resulting in only 49 investigations and 28 private reprimands. The last public discipline case occurred in 2021 when Judge Scott Woldt received a seven-day suspension for inappropriate behavior involving a firearm in court.
In Wisconsin, judges at all levels are elected, and accountability through the ballot box is viewed as a primary means of oversight. However, Margo Kirchner, head of the Wisconsin Justice Initiative, noted that this mechanism is less effective when judicial races are uncontested. In the past four years, 37 judicial races in Dane County were held, with all but one being unopposed. Berz herself won re-election uncontested in April, securing a third six-year term.
Oldfather emphasized that Wisconsin lacks systematic reports on judicial performance, which could provide voters with necessary information during elections. He pointed out that other states, such as Alaska and Arizona, implement judicial performance evaluations to inform voters and promote judicial accountability.
In addition to the Supreme Court’s potential disciplinary actions, state lawmakers can remove judges through a supermajority vote in both houses of the legislature, though this process is rarely attempted and has never succeeded. The last attempt to remove a judge occurred in 2011.
The current misconduct complaint against Judge Berz is under review by three Court of Appeals judges, who will make a recommendation to the state Supreme Court regarding potential disciplinary measures if misconduct is established. The Supreme Court is expected to consider the recommendation at a future, yet-to-be-scheduled date.
Source: The Cap Times
