Suspension Standard for Judicial Misconduct: Impartiality, Decorum, and Public Confidence Established in Wisconsin v. Berz (2025 WI 17)

Introduction

The Supreme Court of Wisconsin’s decision in Wisconsin Judicial Commission v. Ellen K. Berz, 2025 WI 17, marks a significant development in judicial discipline. This per curiam opinion addresses allegations that the Honorable Ellen K. Berz, a Dane County Circuit Court judge, willfully violated multiple provisions of the Code of Judicial Ethics in two separate incidents. The Wisconsin Judicial Commission (the “Commission”) charged Judge Berz with discourteous and partial behavior in open court, as well as an unauthorized attempt to arrest a defendant outside the courthouse. By joint stipulation, Judge Berz admitted the factual allegations and accepted recommended discipline. The Supreme Court, after independent review, adopted the panel’s findings and imposed a seven-day suspension without pay.

Key issues:

What constitutes a willful violation of the Code of Judicial Ethics under WIS. STAT. § 757.81(4)(a)?
When is a reprimand insufficient, requiring suspension instead?
How do prior precedents guide the calibration of judicial discipline?

Parties:

Complainant: Wisconsin Judicial Commission
Respondent: Hon. Ellen K. Berz, Dane County Circuit Court Judge

Summary of the Judgment

By order dated May 27, 2025, the Supreme Court reviewed the Judicial Conduct Panel’s findings under WIS. STAT. § 757.91. Two incidents formed the basis of the complaint:

State v. Harrison (May 31, 2019): During a motion hearing, Judge Berz made sarcastic and threatening remarks to defendant Richard Harrison, Jr., calling his request for a continuance a “ruse” and warning she “will not forget” any perceived gamesmanship.
State v. Hodges (Dec. 13, 2021): When defendant Noah Hodges failed to appear due to a hospital visit, Judge Berz ordered courthouse security to fetch him, and, upon learning this was impossible, attempted personally to drive to the emergency room—coercing defense counsel to accompany her in her private vehicle.

The Panel concluded that each incident involved willful violations of SCR 60.02 (judicial integrity), SCR 60.03(1) (promoting public confidence), SCR 60.04(1)(d) (dignity and courtesy), and, in the Hodges case, SCR 60.04(1)(e) (absence of bias/prejudice). Under WIS. STAT. § 757.81(4)(a), these violations amounted to judicial misconduct. The Commission and Judge Berz had agreed on a seven-day suspension, which the Panel recommended. The Supreme Court adopted all findings and conclusions, independently determined that suspension was appropriate, and ordered Judge Berz suspended without pay for seven days, beginning June 26, 2025.

Analysis

Precedents Cited

In re Disciplinary Proceedings Against Woldt, 2021 WI 73: Established non-exhaustive factors for determining discipline, including nature, frequency, and context of misconduct.
In re Disciplinary Proceedings Against Gorski, 2020 WI 5, and Michelson, 225 Wis. 2d 221 (1999): Both involved intemperate judicial remarks resulting in public reprimands.
In re Disciplinary Proceedings Against Calvert, 2018 WI 68: Clarified that discipline aims to protect the public and preserve judicial integrity, not to punish.

Legal Reasoning

The Court applied a two-step review under WIS. STAT. § 757.91: factual findings are upheld unless clearly erroneous; legal conclusions and discipline are reviewed de novo. The stipulated facts established that Judge Berz’s conduct was “willful”—she knowingly exercised her judicial power in derogation of her ethical duties.

Key principles applied:

SCR 60.04(1)(d): Judges must remain patient, dignified, and courteous. Sarcastic threats and sarcastic commentary disrupt the proper presentation of a case and undermine public trust.
SCR 60.04(1)(e): Judges must perform duties impartially. By attempting to arrest a defendant outside official procedures and involving defense counsel, Judge Berz abandoned her neutral magistrate role.
SCR 60.03(1) & 60.02: Integrity and impartiality are the bedrock of judicial office. Loss of temper and unauthorized extrajudicial action erode confidence in the judiciary’s fairness.

Upon confirming that a mere reprimand would not suffice given the seriousness of the Hodges incident and the cumulative effect of both incidents, the Court endorsed a brief suspension. The span of seven days strikes a balance: it is short enough to recognize Judge Berz’s otherwise unblemished tenure and her acceptance of responsibility, yet firm enough to signal that impulsive misconduct will not be tolerated.

Impact

This decision clarifies that:

Even a single episode of egregious intemperance or extrajudicial intervention can justify suspension.
Judicial Conduct Panels and the Supreme Court will weigh both mitigating factors (length of service, no prior discipline, remorse) and aggravating factors (courtroom setting, severity of misconduct, effect on trust).
Future disciplinary bodies must consider suspension where a judge’s conduct transcends mere discourtesy to undermine impartiality or involve unauthorized law enforcement activity.

Lawyers and litigants can expect heightened scrutiny of any appearance of bias or loss of composure from the bench. The decision underscores the judiciary’s commitment to decorum as integral to due process.

Complex Concepts Simplified

Willful violation: Intentional breach of an ethical rule, not accidental or inadvertent.
SCR (Supreme Court Rule): Codified ethical standards binding Wisconsin judges.
Joint Stipulation: Agreement by both parties on facts, legal violations, and recommended discipline, streamlining proceedings.
Per curiam: An opinion issued by the Court as a whole rather than a single justice’s authorship.
Body-only warrant: A directive to arrest a specific person for appearance in court, without authorizing broader searches or property seizures.
De novo review: The Supreme Court’s independent examination of legal conclusions, without deference to the Panel’s determinations.

Conclusion

The Supreme Court’s decision in Wisconsin Judicial Commission v. Berz establishes a clear disciplinary benchmark: judges who relinquish their impartial role through sarcasm, threats, or unauthorized extrajudicial actions undermine both individual litigants’ rights and the public’s confidence in the judicial system. A seven-day suspension—even for a judge with an otherwise exemplary record—reinforces that the demands of patience, decorum, and neutrality are non-negotiable. This precedent will guide future disciplinary proceedings and remind all judges that the mantle of judicial authority carries an enduring obligation to uphold the highest standards of conduct.