Public Service
Wisconsin's Judicial Emissaries:
Reshaping Justice Systems Worldwide
Many countries are seeking insight and
instruction as they reshape their justice systems. Some are turning to
Wisconsin judges for help. Wisconsin judges have taught in China,
Russia, Lithuania, Ukraine, Hungary, the Czech Republic, Ireland,
Uruguay, and other countries. Here are a few of their stories.
By Dianne Molvig
A Wisconsin judge's sphere of influence stretches to the edges of his
or her jurisdiction, whether it be the city limits, the county line, or
the state border. Or so we typically believe. Some of our state's
judges, however, are having an impact much farther afield.
Milwaukee County Circuit Court Judges John and Jean DiMotto
offered Chinese judges the opportunity to wear Jean's robe. Chinese
judges usually wear military uniforms.
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Today many countries around the world stand at a critical crossroads
as they reshape their justice systems - in some cases while
simultaneously tackling enormous economic and political reforms. Their
successes or failures can have international repercussions. Wisconsin
judges have traveled to some of these countries to help them through the
process of redesigning their justice systems - although few people back
home probably know about it.
Lest anyone argue that this is an extravagance - that these judges
should be back in their courthouses, sitting on the bench - bear in mind
that they have made these trips on their own vacation or judicial
education time. And, with funding from private foundations and
fellowships, or even out of the judges' own pockets, these trips haven't
cost taxpayers a dime. Yet, their overseas teaching tours provided the
richest experiences of their careers, these jurists say, and made them
better judges besides.
Teaching the Elders
Flying over Alaska, gazing at mountains as far as the eye could see,
stirred a pensive mood for Jean DiMotto, as she and her husband, fellow
Milwaukee County Circuit Court Judge John DiMotto, traveled to Beijing,
China. "I was thinking," she recalls, "how ironic it was that this
upstart young country, America, was sending people to this ancient land
to tell them what to do."
"I was thinking how ironic it was that this
upstart young country, America, was sending people to this ancient land
to tell them what to do." Jean DiMotto, Milwaukee County circuit court
judge, traveling to Beijing, China |
Later, in her lead-off presentation, DiMotto told her Chinese
audience that she came in a spirit of sharing, coming from a younger
country to teach the elders - much like her daughter offered learning
opportunities for her and her husband. With sponsorship from the Ford
Foundation, the DiMottos and a German judge led a week-long conference
in May 1998, during which they described their respective systems -
pieces of which the Chinese ultimately may adapt to their own.
Conference attendees included 75 Chinese judges and law professors, some
of whom had traveled three days by train to Beijing.
The focus of the DiMottos' presentations was criminal law, with an
emphasis on the concept of judicial independence. "We had a passionate
discussion," DiMotto says, "about how much they envied the fact that we
have independence." Under the current system, Chinese judges often are
subject to pressures from other government officials on how they decide
their cases.
As government officials themselves, Chinese judges wear military
uniforms on the bench. Displaying judicial robes she'd brought along,
DiMotto explained to her audience that American judges wear robes as a
symbol of their impartiality. Chinese participants who played the part
of judges during mock trials got to wear the robes, and everyone was
promised the chance to don one for photo shoots during breaks.
"Everybody lined up," DiMotto says. "It was a hit."
Several months before the DiMottos' trip, Kenosha County Circuit
Court Judge Barbara Kluka also journeyed to China, with stops in
Shanghai and Xian. She and a German judge taught another group of 75
judges and law professors in each city, focusing on criminal trial
procedure. "They were very interested in hearing about not only our
procedures, but also how we avoid ex parte communications," Kluka
says.
"They were very interested in hearing about
not only our procedures, but also how we avoid ex parte communications."
Barbara Kluka, Kenosha County circuit court judge, traveling to Shanghai
and Xian, China |
The Chinese judges have no such safeguards in their system. "Anyone
can talk to them at any time about a case," Kluka explains. "They'll
walk into their office or courtroom and the waiting area will be filled
with friends of the litigants who besiege them with information and
pleadings." Add to that the lack of judicial independence from other
parts of government, and Chinese judges end up bombarded from all sides
by people who want to influence judicial decisions - a situation they
hope to remedy with system reforms.
Still, despite reports of corruption, Kluka says Chinese judges have
much the same goals as their American counterparts. "By and large they
struck me as being committed to doing justice," she says, "and to
improving their system. It was a tremendous opportunity to meet people
in the same profession who aren't in the same place we are, but
apparently are interested in getting there."
Active Learning
Preceding the DiMottos and Kluka to China were Dodge County Circuit
Court Judge John Storck and Chief Justice Shirley Abrahamson, who
originally received the Ford Foundation's invitation to go to China to
teach. Abrahamson's response was that she wanted some of Wisconsin's
"excellent trial judges who are excellent teachers" to participate as
well, while she would talk about the appellate process. It was on
Abrahamson's bidding that Storck, Kluka, and the DiMottos became
involved.
Wisconsin's Judicial Emissaries:
Reshaping Justice Systems Worldwide
Storck and Abrahamson spent roughly two weeks in
the summer of 1997 in Shanghai and Xian, working with another group of
75 judges and law professors. "When you're explaining our system to
somebody else, you have to focus on the great aspects and the
shortcomings," Abrahamson says. "Every system has
shortcomings. I think you have to be honest with people. You have to
talk about those shortcomings and what you're doing to improve the
system - and what kinds of pitfalls others might avoid."
"When you're explaining our
system to somebody else, you have to focus on the great aspects and the
shortcomings. ... I think you have to be honest with people." Justice
Shirley Abrahamson, Wisconsin Supreme Court, traveling to Shanghai and
Xian, China |
Storck took a highly participatory approach to teaching about
American civil procedures, engaging his students in a mock trial
involving a Chinese judge injured in a car accident while visiting
Madison. They role-played the events all through the process, from
hiring an attorney through the end of the trial. Along the way, Storck
taught about discovery procedures, rules of evidence, jury selection,
and other concepts - all of which are foreign to the Chinese justice
system. In that system, a panel of three judges oversees all phases of a
case - investigation, evidence gathering, witness questioning, and so on
- as well as deciding the final outcome.
Judges in China are not lawyers by background, but come to their
positions through government appointment. This is another targeted area
for reform. "One of the problems they have," Storck explains, "is that
during the Cultural Revolution in the 1960s the government closed all
the law schools. Not only that, but also many attorneys either
disappeared or were sent to the countryside. So you have a generation of
attorneys now missing. Eventually you're going to see more legal
training for judges. But right now they couldn't possibly require it
because they wouldn't have enough judges."
"[D]uring the Cultural Revolution in the
1960s, the government closed all the law schools. ... So you have a
generation of attorneys now missing." John Storck, Dodge County circuit
court judge, traveling to Shanghai and Xian, China |
Storck also explained to the Chinese participants how judges are
elected in the United States, again taking a show-and-tell approach
complete with campaign posters, balloons, stickers, and other
paraphernalia from his own most recent campaign. Apparently his audience
members got into it. "At the end of my talk," Storck recalls, "one of
the judges blew up one of my balloons and said how much he'd enjoyed the
time with us, and that in my next reelection, they'd be there to help. I
said, 'Thanks, but please don't send any checks.'"
Building Foundations
Eastern Europe is another arena where judicial reforms are just
getting under way. In October 1998, District I Court of Appeals Judge
Ted Wedemeyer Jr. and four other American judges traveled to three
former Soviet-ruled countries: the Ukraine, Hungary, and the Czech
Republic. The judges went as volunteers under sponsorship by the Central
and East European Law Initiative of the American Bar Association and the
People to People Program, which strives to create cross-cultural
exchanges of people from various occupations.
"In all three countries," Wedemeyer says, "they'd had a
constitutional form of government for less than three years [at the time
of his visit]. So they're struggling because they have no basic
tradition" to fit with the new governmental form. This is especially
true, he adds, for the Ukraine, which has had only one year of freedom
before, back in 1919. Hungary and the Czech Republic have had more
recent stints of constitutional government, so they have more experience
to draw from.
"In all three countries, they'd
had a constitutional form of government for less than three years ... so
they're struggling because they have no basic tradition [to fit with the
new governmental form]." Ted Wedemeyer Jr., District I Court of Appeals
judge, traveling to Ukraine, Hungary, and the Czech Republic |
"Imagine you're living in Wisconsin," Wedemeyer says, "and there's no
banking law, no real estate law ... the party runs everything. And then
you suddenly have to switch. There is no body of law with which to
function. That's what these countries are going through."
What struck him most, Wedemeyer says, were the younger lawyers who
are pushing for change. They, for instance, are the ones championing the
legal claims of Chernobyl victims in the Ukraine. "The young lawyers
realize that the government is obligated under the agreements with the
European Union to grant human rights and to have an open society,"
Wedemeyer points out. "They are the molders of change. It was great
working with them because they want to know everything" about the U.S.
justice system.
"Professionally, I gained a lot of enthusiasm for what we have in our
system," Wedemeyer adds, "and for our obligation to try to help these
people establish a solid foundation. If they can develop the
[independent judicial system] culture and it continues for a couple of
generations, then it will be part of their way of life."
On the other side of the globe, Portage County Circuit Court Judge
Frederic Fleishauer ventured to Uruguay for several weeks in 1998, under
a Fulbright grant. He lectured, in Spanish, to judges and lawyers about
American civil procedure and judicial ethics, and also visited courts,
talked with judges, and observed the Uruguayan judicial system in
action.
Unlike the other countries mentioned earlier, Uruguay has had a
stable democracy since 1828, except for a couple of relatively brief
stints of dictatorship. Still, Fleishauer noted major differences
between their judicial system and ours.
"The judicial role is far more
expanded than it is in our system. Their system is based on a collection
of depositions and a review of that by the court, although the court
also is involved in deciding who gets deposed and what evidence gets
collected. It's an amazing involvement by our standards." Frederic
Fleishauer, Portage County circuit court judge, traveling to
Uruguay |
In civil procedures, "they have no concept of a trial per se,"
Fleishauer explains. Instead, the "trial" is the creation of a record
from the beginning to the end of a lawsuit. Any gathered evidence goes
into a case file. "The judicial role is far more expanded than it is in
our system," Fleishauer notes. "Their system is based on a collection of
depositions and a review of that by the court, although the court is
also involved in deciding who gets deposed and what evidence gets
collected."
Judges also play a more expanded role in criminal cases. They decide
whether a case should come before the court, what charges should be
brought, and what evidence should be collected. Later, the judge
determines which evidence is to be believed and renders a decision.
"It's an amazing involvement by our standards," Fleishauer notes.
Uruguay is now examining ways to separate the judicial and prosecutorial
roles in criminal cases, in accordance with the Costa Rican Accord, a
treaty signed by several Latin American countries.
While some practices are by our standards an overstepping of judicial
authority, the Uruguayan system's nonadversarial nature has its
benefits, Fleishauer says, noting that all parties involved in a case
are sworn to do justice. "Some aspects of that we could use a little of
in our system," Fleishauer says. "Other parts of it seem strange to
us."
Through first-hand observation of another country's justice system,
"I gained another perspective on my own work," Fleishauer says, "and on
our legal proceedings. When you see other systems, you realize there are
things we do well and things others do better than we do. That's always
an interesting awakening."
Dianne Molvig operates Access
Information Service, a Madison research, writing, and editing service.
She is a frequent contributor to area publications.
Wisconsin Lawyer