Wisconsin Judicial Commision v. Honorable Ellen K. Berz, 2024AP2038-J, 5/27/2025, (per curiam judicial discipline case)
In a unanimous decision, SCOW agrees that a judge’s “intemperate” response to an adjournment request and attempt to personally arrest a criminal defendant violated the applicable rules and merited the sanction of suspension without pay.
Here, the Court reviews misconduct allegations stemming from two criminal cases. The first set of allegations arose in context of a recurring source of courtroom tension, a defense request for adjournment which triggered the following exchange:
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[ . . . .].
(¶5). The panel in this case “concluded that Judge Berz’s conduct during the hearing constituted a willful violation of the following provisions of the Code: SCR 60.04(1)(d),4 which requires judges to treat those with whom they deal in an official capacity, including litigants, with patience, dignity, and courtesy; SCR 60.03(1),5 which, in part, requires judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and SCR 60.02, 6 which, in part, requires judges to personally observe high standards of conduct so that the integrity and independence of the judiciary will be preserved.” (¶6).
SCOW agrees with the panel that this conduct warranted the sanction of a suspension:
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.
(¶21).
The second basis for discipline was relatively well-publicized and involved the judge’s decision to pursue a defendant who had failed to appear for court in her personal vehicle. (¶9). It was her intent to drive to the hospital, where the defendant was located, to retrieve him for court. (Id.). She only desisted from this plan after having been persuaded to do so by defense counsel, who rode shotgun during the ill-fated journey. (Id.). This conduct violated a number of rules, as found by the panel:
The Panel concluded that, by this conduct, Judge Berz had willfully violated the following provisions of the Code: SCR 60.04(1)(d), which requires judges to treat those with whom they deal in an official capacity, including lawyers, staff, court officials and others subject to the judge’s direction and control, with patience, dignity, and courtesy; SCR 60.04(1)(e), 7 which requires judges to perform judicial duties without bias or prejudice; SCR 60.03(1), which, in part, requires judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and SCR 60.02, which, in part, requires judges to personally observe high standards of conduct so that the integrity and independence of the judiciary will be preserved.
(¶12).
These allegations are “troubling” to SCOW, which agrees that a suspension is also warranted for this conduct. (¶22).
