Out of Order

When the case of a woman who claimed she was fired after refusing sex with her boss came before Circuit Judge Robert H. Dierker Jr., he didn't just issue an order. He let the world know a little too much about his politics and what he thinks about the "de

"The pleaded facts must show outrageous conduct, i.e., conduct which is regarded as atrocious and utterly intolerable in a civilized society," Dierker continues. "Mere solicitation to begin, or renew, a sexual relationship is not such conduct. There must be more." In essence, says the judge, the doctor was not intentionally trying to inflict emotional harm but simply seeking sex.

"Plaintiff would seek to have the Court impose a duty of care on persons inviting others to engage in sexual relationships," the judge continues. "Plaintiff's attempts to inveigle the Court into a realm which is best left to church and family is supported by neither reason nor authority. Absent outrageous intentional conduct, resulting in substantial, objective injury -- or legislation imposing a standard representing the will of the people -- the courts cannot and should not attempt to regulate behavior in this peculiarly private area."

Dierker concludes by suggesting that "the sexual harassment police seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace."

Dierker granted the doctor's motion to dismiss the case on both counts but allowed the woman to file an amended petition "restating Count I consistent with this opinion."

Reached by phone, Dierker was polite but firm, declining to comment on the case because it is pending. He also declined to talk about the language in his order or to explain the use of such "florid rhetoric," as he later called it. He said he appreciated the courtesy but thought it best not to make any public statements.

Catalona, the woman's attorney, also declined to comment, because the case is pending.

Since the day King Solomon decided the first recorded child-custody case by commanding his servants, "Get me a sword," the model of judicial virtue has included discernment, breadth of mind and wisdom surpassing at least "all that of Egypt."

The framers of the U.S. Constitution kept that in mind when, hoping to ensure the new republic ran smoothly, they installed an unbiased branch of government to keep an eye on the other, more whimsical, popularly elected ones. It's part of the system of checks and balances, and the idea was that the legislative and executive branches would create the laws -- and then live or die at the polls accordingly -- and the judicial branch would interpret those laws without any outside pressures forcing its decisions.

"In theory, the court objectively interprets the law that is already on the books," says Alan J. Howard, a professor of law at St. Louis University, "so even if the court's decision would not be popular, it must still interpret the law as it understands it in some objective sense, so it's not subject to political pressure, unlike the Legislature that does respond to political pressure.

"Laws reflected ideology," Howard continues, "but in theory, a judge will enforce a law even if politically they disagree with the ideology of the law. So judges will say, 'Our job is to faithfully and objectively apply the law already on the books, and if you don't like the results, then don't blame us -- blame yourselves or your lawmakers that pass the laws we're objectively enforcing and interpreting.'"

In an attempt to keep the judicial branch as passionless and pure as possible, the American Bar Association (ABA) created a model code of judicial conduct that most states, including Missouri, have adopted for their judges. Among the enforceable rules: "The judge should be unswayed by partisan interests, public clamor, or fear of criticism." "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by word or conduct, manifest bias or prejudice based upon race, sex, religion, national origin, disability, or age.... " "A judge should recuse in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge ... has a personal bias or prejudice concerning the proceeding."

As George Kuhlman, ethics counsel for the ABA in Chicago, notes: "The whole judicial system is based on the notion that a judge is a neutral and impartial person who is going to fairly hear and doesn't have any biases. There isn't anything more fundamental than this: You go to a fair person if you want to mediate a dispute between two people. You want someone to take into account everything each person has to say and then decide what's fair and what is relevant to the issue."

But judges aren't always as infallible as the U.S. Constitution envisions them to be. Solomon certainly wasn't (see I Kings 11:11).

"It's outrageous," says one local attorney about Dierker's order in the sexual-harassment case.

"Let me put it this way," says another. "You'd be hard-pressed to find anything as personal as this."

Says another: "It raises questions as to whether this judge is deciding what is proper policy and is now making a ruling based on it. Is this judge following the law, or does this judge have his own ideas on what good public policy is, based on his personal philosophy?"

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