March 2008

Judge Jekyll and Mr. Hyde?

by the Honorable Susan A. Dubuisson and the Honorable Douglas H. Haake

In Strange Case of Dr. Jekyll and Mr. Hyde, Robert Louis Stevenson dealt with the psychopathology of a split personality brought on by ingestion of a potion. While not rising to the level of pathology experienced by Dr. Jekyll, judges at times experience symptoms that can negatively impact their ability to do their jobs, the people around them, and their careers as judges. Determining what "potion" set off the change and how best to deal with the problem is of interest to all of us. Losing the services of experienced and productive judges has personal and societal costs that can and should be avoided.

Let's look at two hypothetical cases. Judge "Sam Lowery" is a well-respected senior judge in the superior court of a mid-sized county. He is regarded by lawyers as somewhat eccentric, but decisive and even-handed in his rulings. Lately, however, Judge Lowery appears short-tempered, unusually rude to litigants, and late in getting his decisions out. Courtroom spectators report that the judge has appeared to be asleep at the bench. Judge Lowery's colleagues are noticing changes, too, including withdrawal and abusive or otherwise inappropriate dealings with court staff.

In the next county to the north, Judge "Mary Ellen Baxter" is the sole district court judge. She has a reputation for efficiency and decorum in managing her calendars. Recently, she is showing up later and later for court. On occasion, she has not appeared at all, leaving her staff scrambling to find pro tems. When Judge Baxter is there, she is inattentive and appears preoccupied. The court manager increasingly finds himself making important administrative decisions without Judge Baxter's input or support.

Busy lawyers, faced with losing hours of time waiting for Judge Baxter, are considering filing a complaint with the Commission on Judicial Conduct. Lawyers practicing in Judge Lowery's court are filing affidavits of prejudice in order to protect their clients. Judge Lowery's longtime bench mates, many of whom are also friends, know there is a problem affecting the court but are unsure what the problem is or how to deal with it.

Affidavits may address the attorneys' immediate concerns, but at the cost of shifting workload to other judges. Complaints to disciplinary authority may eventually get to the underlying problem, but they take time and can be highly disruptive to the court. Affidavits or complaints will likely result in public scrutiny that may negatively affect the judge's potential for a productive future.

To return to our Jekyll and Hyde analogy, the first question to ask is what "potion" brought about the change in the judges' behavior. That question is as easy — and as hard — to answer as identifying which of the myriad stressors to which all people react is responsible for a change in behavior. Perhaps Judge Lowery suffers from emotional burnout after a gruesome murder trial or a particularly contentious child-custody dispute. Maybe Judge Baxter has recently lost a close family member.

It is not surprising that judicial officers face stress on many levels. It may come from the pressures of moving large dockets, dealing with emotionally wrenching and horrible evidence, crushing workloads, isolation from former friends and colleagues, or the difficulty of balancing professional demands with a satisfying personal and family life.

There is a growing body of scholarship documenting that jurors are traumatized by such things as viewing gruesome evidence and the pressure to make life-affecting decisions without enough information, compounded by the sometimes contentious atmosphere of jury deliberations. We're beginning to understand that judges also experience "vicarious trauma" and that they, too, may act out in response. Unlike the expectations for jurors, judicial culture and rules of conduct constrain judges from expressing their feelings or talking about their decisions in most cases. There are also societal expectations — to which most judges strive to adhere — that they appear calm and in control at all times.

While judges understand that all of this comes with the territory, and most judges adapt to these demands, there may come a time in their careers when some event or series of events overwhelms their usual resilience. At that point, they may respond in ways similar to Judges Lowery and Baxter.

Lawyers and judges seem to share a reluctance to seek help when the demands of their profession become overwhelming. Concerns about damaging the reputation of a once respected and productive judge may lead those who are aware of problems to look the other way or try to provide cover. Lawyers or court employees may also be reluctant to "turn in" a judge they appear before or work with regularly.

This raises another question: Is there anywhere lawyers, court staff, colleagues, or the judges themselves can turn for help? This one is easy to answer. The Judicial Assistance Service Program offers a confidential referral source for judges experiencing personal or professional problems. Anyone can access the service. The process is simple: just call the program director at 206-727-8265 or 800-945-9722, ext. 8265. You may also send a confidential e-mail to judicialassistancecommittee@courts.wa.gov. Depending on the concern, referrals may result in a letter or phone call to the judge by a professional in the WSBA Lawyer Services Department, or the judge may be contacted by a specially trained peer counselor from the Judicial Assistance Committee. Judges may be referred to specialized counseling or treatment if necessary. Program staff and peer counselors will respect the confidentiality of both the referring party and the judge (DRJ 14).

In Stevenson's novella, Dr. Jekyll ultimately changes permanently into the evil Mr. Hyde. The Judicial Assistance Service exists to offer a curative for the symptoms resulting from whatever "potion" is threatening a judge's personal and professional lives in the hope that society can continue to benefit from the services of experienced, productive judges. 

Judge Susan A. Dubuisson has served on the Thurston County District Court bench since 1984. She is a past judicial representative on the Judicial Conduct Commission, a trained peer counselor, and a member of the Judicial Assistance Committee. Judge Douglas H. Haake is a graduate of Northwestern School of Law, Lewis and Clark College. He worked as an attorney for Metropolitan Public Defender in Portland, Oregon, practicing in district, circuit, and juvenile courts. After 13 years as a public defender, he moved to Washington and began working for the Washington State Administrative Office of the Courts, where his primary duties were to provide staff support to the District and Municipal Court Judges Association. As staff to the DMCJA, he was actively involved in the formation of the DMCJA Judicial Assistance Committee and has participated in and provided staff support to that committee. Judge Haake was recently appointed judge for the Bonney Lake Municipal Court.