Above The Fray

The sanction of a seven-day day suspension without pay of a circuit court judge was imposed by the Wisconsin Supreme Court

We review, pursuant to WIS. STAT. § 757.91, the findings of fact, conclusions of law, and disciplinary recommendation of  the Judicial Conduct Panel in this proceeding brought by the Wisconsin Judicial Commission against the Honorable Ellen K. Berz, a judge for the Dane County Circuit Court. In its complaint, the Commission alleged that, in connection with two separate incidents, Judge Berz willfully violated certain provisions of the Code of Judicial Ethics; namely, Supreme Court Rules (SCRs) 60.02, 60.03(1), 60.04(1)(d), and 60.04(1)(e). In a Joint Stipulation, Judge Berz admitted the factual allegations of the complaint and agreed that she had violated the Code as alleged. Based on the Joint Stipulation, the Panel found as fact the allegations of the complaint and concluded that Judge Berz had willfully violated the Code as alleged, which constituted judicial misconduct under WIS. STAT. § 757.81(4)(a). After receiving memoranda from the parties regarding the appropriate level of discipline, the Panel recommended the seven-day suspension to which the Commission and Judge Berz had agreed in their Joint Stipulation. By order of April 15, 2025, this court invited the parties to submit briefs regarding the Panel’s report. Neither party elected to do so.

After carefully reviewing this matter, we adopt the Panel’s findings of fact, and we agree that those facts establish that Judge Berz committed judicial misconduct as alleged. We conclude that as discipline for that misconduct, Judge Berz should be suspended without pay for a period of seven days, commencing June 26, 2025.

There were two matters at issue

The first incident at issue in this proceeding occurred during a May 31, 2019 hearing over which Judge Berz presided in State v. Richard Harrison, Jr., Dane County Circuit Court Case No. 2017CF2770. At the conclusion of the hearing, after previously having made several requests for additional time to prepare for trial in his criminal case, the defendant made an additional such request, and the following exchange occurred:

THE COURT: Okay, Thank you. [The last trial date] was October of 2018. Then it was rescheduled to now. And the reason it was rescheduled six months later was to give the defense every opportunity to look into anything they wanted to look into.

I agree with [the prosecutor] that, in all probability, this will turn out to be a ruse. And if it does and if he is convicted at trial, this Court will not forget that. Let’s just make that abundantly clear.

The reason I am requiring the State to take a position on the motion to reschedule is because it’s really a gamble whether you want to put the child [victim] through a trial and then, if it was exculpatory information that would have probably changed the outcome of the trial, that’s how I think it has to be. But if it were that, you’d have to put the child through yet another trial, which, of course, no one would want to do.

I’m going to allow the reschedule.

And just let me make this abundantly clear to you, Mr. Harrison. You’re not playing that game anymore after this. It’s not a look, I found another rabbit in the hat; look, there might be something underneath this rug. If this trial — when this trial is rescheduled, we’re not playing that game. So play the game with other people you’re with. Go to the prison and talk to them about all the games you can play. We’re done here. Clear? Mr. Harrison, clear?

THE DEFENDANT: Yeah, your sarcasm is extremely clear.

THE COURT: Good. I thought it would be. That’s why I’m saying it to you that way, because I thought you would relate with that.

THE DEFENDANT: I don’t.

THE COURT: I think you do.

THE DEFENDANT: I don’t.

[DEFENSE COUNSEL]: That’s enough.

THE COURT: Now, Mr. [DEFENSE COUNSEL] —

[PROSECUTOR]: Judge, I’m sorry to interrupt you,  but[ . . . .].

The second incident involved a jury trial scheduled to begin that day before the judge

On the morning of December 13, 2021, Hodges did not appear for the scheduled proceeding. Hodges’ attorney told Judge Berz that Hodges was at a hospital and had been admitted. Rather than issue a bench warrant for his non-appearance or continue the case to a future date, Judge Berz directed a staff member to determine Hodges’ location. Court staff learned that Hodges was at a hospital emergency room in Sun Prairie, Wisconsin.

After obtaining Hodges’ location, Judge Berz directed the bailiff, who was responsible for the security of Judge Berz’s courtroom, to leave the courthouse in order to arrest Hodges. After learning this was not possible, Judge Berz told those present in her courtroom that she would retrieve Hodges from the hospital herself. Judge Berz also stated that, if something happened to her when she went to pick up Hodges, they would hear about it on the news. Judge Berz instructed Hodges’ attorney to accompany her on this trip and to refrain from telling Hodges that they were on their way to him. The prosecutor was not present for this interaction. 

Judge Berz then drove from the Dane County Courthouse in her personal vehicle with Hodges’ attorney seated in the front passenger seat. The prosecutor was not present in the judge’s vehicle for this trip.

Hodges’ attorney told Judge Berz that this trip was a bad idea, as the judge is to be the neutral decision maker in the case. Judge Berz told Hodges’ attorney that, if she truly thought they should turn around, they would do so. Hodges’ attorney said that they should turn around; Judge Berz did so and returned to the courthouse. At the time Judge Berz turned around, she was headed in the direction of the emergency room in Sun Prairie. After returning to her courtroom, Judge Berz recalled the case and stated: “The bailiffs have refused to arrest the defendant, to leave the courthouse in order to do so, so I’m ordering a body-only warrant.”

The court

We find no error in the Judicial Conduct Panel’s factual findings, which were based on the parties’ stipulation regarding the two incidents described above. We also agree with the Panel that these facts show that Judge Berz willfully violated the Code of Judicial Conduct as alleged in the complaint, and therefore committed judicial misconduct under WIS. STAT. § 757.81(4)(a).

We further agree with the Judicial Conduct Panel that Judge Berz’s actions warrant a suspension, not a reprimand. The judicial intemperance displayed by Judge Berz is simply not acceptable. Judges must maintain objectivity, open-mindedness, and decorum, even when— especially when—they are faced with trying circumstances. By telling Harrison that “in all probability” the continuance he requested to pursue exculpatory evidence “will turn out to be a ruse,” and if so, “this Court will not forget that,” Judge Berz failed to exhibit these necessary qualities. Her subsequent back-and-forth exchange with Harrison was likewise unbecoming of a judge. Judges are to be above the fray, not part of it.

Judge Berz’s behavior in Hodges is even more troubling. It went well beyond an ordinary display of frustration with the travails of the courtroom. Judge Berz lost her judicial composure completely. Judges cannot behave so impulsively and still expect litigants and the public to trust that the court system will administer fair, measured, evenhanded justice. Such behavior demands a response stronger than a reprimand.

The Cap Times reported on the matter prior to the above decision and noted

Attorneys have sought to remove Circuit Court Judge Ellen Berz from handling their cases more than any other Dane County judge since 2020. They have petitioned to replace Berz with a different judge over 420 times, leading her 16 colleagues by hundreds of requests.

(Mike Frisch)