Public Service
Wisconsin's Judicial Emissaries: Reshaping Justice Systems Worldwide

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.

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."

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.

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.

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."

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."

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.

"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.

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."

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