Attorneys: 31 Wis. judges should not be on bench

Eric Litke | USA TODAY NETWORK-Wisconsin

Thirty-one Wisconsin circuit court judges are biased and abrasive enough they should not be on the bench, according to a statewide survey of trial attorneys.

That question — whether a judge should be retained — was among 15 posed to attorneys around the state in a first-of-its-kind survey administered by the Gannett Wisconsin Media Investigative Team. Attorneys submitted more than 2,000 anonymous evaluations rating the legal ability, impartiality, communication and temperament of judges they appeared before in the past year.

How we conducted our judicial survey

Full I-Team report: WisconsINjustice series

Attorneys also were asked if the judge they rated should remain on the bench, and for 31 judges the majority of attorneys said no. Those judges rated especially low on questions addressing respectful treatment of others and ruling without bias to subjects’ race, gender or history with the judge.

In a state without a formal evaluation system or other means of judicial assessment, the survey is an unprecedented look behind the judicial veil at how Wisconsin judges are performing the job they’re elected to do.

Most states have a formal evaluation system or at least an attorney survey to provide information to judges and voters, but Wisconsin does not.

“There’s no feedback loop to judges that is effective, because how many people are going to go up to their local judge and say, ‘You know judge, I’ve been watching you in the courtroom and I think that blank,’ or ‘You shouldn’t be saying things like that,’ or ‘You shouldn’t be doing things like that?’ ” Dodge County Judge John Storck said. “They don’t do things like that. … People don’t talk back to judges, for a variety of reasons.”

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But behind a cloak of anonymity, Wisconsin attorneys had plenty to say. The surveys included a comments section for attorneys to weigh in on the judge they rated.

Many judges were widely lauded for their intellect, fairness and temperament. These judges show empathy for those before them, are prepared for court and explain their rulings thoroughly so litigants can understand even if a hearing doesn’t go their way, attorneys said.

But dozens of judges were widely panned as well.

Temperament was a particularly common critique. Rude, arrogant and disrespectful were among the more common words to crop up in surveys. More than a dozen surveys described judges as having a problem with their temper, and five went so far as to call a judge verbally abusive.

Judges were also commonly lambasted for favoring the prosecution due to a background on that side of the aisle, failing to rule in a timely manner and ignoring or not knowing applicable case law. Other judges were slammed for a lack of professionalism that extended to poor hygiene, falling asleep or playing on the computer during hearings.

Fairness was a key complaint from all attorneys, as a question about considering both sides before ruling drew the lowest average marks across all surveys at 3.7 out of 5.

Gannett Wisconsin Media is not publishing individual comments because attorneys were promised their survey responses would be published only in aggregate form.

The highest-rated judge was Milwaukee County’s John DiMotto, who posted the top marks in the state for knowledge of the law, issuing rulings supported by law and acting with dignity.

The I-Team is publishing survey results for all judges who had at least five attorney evaluations, which includes 205 of the state’s 249 circuit court judges. The average rating across all surveys was 3.8 on a 1-to-5 scale. DiMotto averaged 4.8.

DiMotto described himself as a tireless student of the law, still reading and writing up a summary of every Wisconsin Supreme Court decision and published Court of Appeals decision as he did in law school. He keeps them on file for use in future cases.

“People ask me, don’t I have a life,” he said. “I really think I owe it to litigants and attorneys to know the law.”

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Waushara County Judge Guy Dutcher — with an overall rating of 4.6 — said it is humbling to have been rated among the state’s top judges. He said his goal on the bench is to “treat people with dignity and respect, and to provide a forum where everyone will be treated fairly and have their positions considered.”

Dutcher said he is ever conscious of the heavy responsibility that comes with his position, and the ripple effect his decisions have.

“When you sentence someone to prison, you understand that they are not the only individual that you are sentencing to prison, and that is a very difficult realization to accept at times,” Dutcher said. “This is a very emotionally draining and trying job because of what we see on a regular basis. It is a revolving door of human tragedy.”

Brown County Judge Thomas Walsh — who received a 4.6 rating overall — said people leaving his courtroom should always feel they have been heard and know why he ruled as he did.

“I feel like I have a duty to them to actively listen to what they have to say before I render a decision,” Walsh said. “Usually what I find is if they feel they’ve been listened to, they can handle most of the decisions I make.”

DiMotto, Dutcher and Walsh were among 36 judges whom all attorneys recommended for retention. Temperament was a critical factor, as judges with a unanimous endorsement were rated particularly high for treating others with respect, acting in a dignified manner and avoiding impropriety on the bench.

Two judges — Milwaukee County’s John Siefert and Walworth County’s James Carlson — had the ignominious distinction of having no attorneys recommend they stay on the bench. Siefert, the state’s lowest-rated judge, was 0 for 21.

Mobile users: Search our ratings of Wisconsin judges

Siefert received an overall rating of 2.1 from the 21 attorneys who evaluated him, posting the lowest score in the state on half of the questions. His worst marks — averaging 1.5 or 1.6 — came for treating others with respect, acting in a dignified manner and ruling without bias.

Siefert — like all but one of the 10 lowest-rated judges — did not respond to an email seeking comment.

Milwaukee County Judge Mary Kuhnmuench, whose score of 2.5 was fourth-lowest in the state, said she expects her personality played a role in the ratings. Her lowest scores came in oral communication, bias, treating others with respect and knowledge of the law.

"I’m fairly well known to have a strong personality — that’s going to evoke very strong negatives and very strong positives,” Kuhnmuench said. “I live and die by that personality. … Every judge wants to be liked, but I believe it’s more important to be respected.”

Kuhnmuench noted many members of the local bar association have publicly endorsed her in past elections. And she said she has an open door policy so lawyers can approach her in court or privately in chambers to express their disagreement or objections to her rulings.

Judges’ performance ratings overlapped heavily with requests for judicial substitutions — judges with the highest ratings were far less likely to have defendants request a new jurist.

The 10 highest-rated judges averaged 83 substitutions over the past five years, while the 10 lowest-rated averaged 245 substitutions. DiMotto, the top-rated judge, had only 12 substitutions from 2010 to 2014.

“The reason for that is, it doesn’t matter what kind of case it is, I think lawyers view me as being fair, as being reasonable,” said DiMotto, who has been on the bench for 25 years. “I think they respect the fact that I listen to their arguments and to what they say, that I don’t pre-judge a hearing or a case.”

Which judges had the most substitution requests? Search our database

The frequency with which judges are overturned on appeal had little relation to judicial ratings. And attorneys didn’t show a preference for judges based on sentencing harshness, even though defense attorneys outnumbered prosecutors four to one among survey respondents.

Eighteen of the 50 highest-rated judges had enough cases to be part of the I-Team’s sentencing analysis, and they averaged a harshness rating of 5.8 out of 10, just above the state average. Sentencing harshness among the 50 lowest-rated judges was just a tick higher at 6.4.

There was little difference in how different types of attorneys rated judges overall. For example, male attorneys submitted an average rating of 3.83 across all surveys, while female attorneys averaged 3.88. The divide was similarly minimal between prosecutors and defense attorneys.

But some judges were rated very differently by different groups of attorneys.

Among the 30 judges rated by at least five male and five female attorneys, three were scored more than a point higher by one or the other. The largest gender gap was for Fond du Lac County Judge Dale English, whom female attorneys rated an average of 4.8, while male attorneys averaged 3.6.

Eau Claire County Judge Jon Theisen and Kenosha County Judge Chad Kerkman were rated more than a point higher by male attorneys.

Male judges rated slightly higher as a group, averaging an overall score of 3.9, compared to 3.7 for female judges.

Few judges had enough surveys from attorneys in differing areas of practice to examine differences, but divided opinions were still evident for several.

Dane County Judge Ellen Berz received a 4 rating from criminal defense attorneys, but only a 2.9 from family law attorneys. Dane County’s John Markson got perfect 5s from every civil attorney but averaged 3.8 among criminal defense attorneys.

Reach Eric Litke at 920-453-5119, elitke@gannett.com or on Twitter @ericlitke.