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

Dierker, in his Law Day article, adds that taxes imposed by the courts, such as those required to fund the Kansas City and St. Louis school-desegregation cases, are additional ways in which the judiciary manipulates the Constitution.

"With regularity we find courts seizing control of state and local governmental institutions, displacing elected officials and nullifying the votes of ordinary citizens and Congress alike, when these votes do not comport with the notion that a judicially favored minority must always be 'protected' against the 'oppression' of the judicially favored majority," Dierker writes, then adding other issues dear to conservative politics, including anti-environmental policies, gun rights and the attempt to end subsidized legal services for low-income people.

With these statements, Dierker publicly aligned himself with a highly controversial political movement that gained a reputation for "attacking" the individual rights of feminists, racial minorities, homosexuals and environmentalists.

So when Dierker issued his order on the sexual-harassment case using phrases such as "the sexual harassment police" and the "cloud-cuckoo land of radical feminism," was he crossing the ethical line drawn by the Constitution?

"I do think that to a certain extent, some of the judge's views on so-called judicial activism do tend to come through in the opinion," says Elliot Mincberg, general counsel and legal director for People for the American Way in Washington, D.C. "The (Law Day) article was very troubling to me, though, because it suggests a very narrow result-oriented conservative view of what the court should be doing in constitutional cases and the whole way that the Constitution protects minorities' rights."

Says Joy, of Washington University, concerning the question of whether the judge crossed any ethical lines: "It might be a fair conclusion to reach. It doesn't seem as if the initial part of the order and the discussion the judge engages in the initial part of the order really has anything to do with the case before the court. In fact, this initial part of the order could have been something from an op-ed piece or a bar-journal article in that it's basically opinion.

"When he uses the phrase 'sexual harassment,' which is a legally recognizable claim and combines it with the phrase 'sexual-harassment police stretching their tentacles,' he seems like he's criticizing the entire concept of sexual harassment," Joy continues. "Obviously if a person had a sexual-harassment case and had this judge assigned to the case, I think a very good argument could be made that the judge should recuse himself from the case.

"I have no reason to believe that he wasn't fair in handling the case," Joy concludes. "However, I think the introduction (of the order) does expose him to that type of criticism."

Whether any complaints have been filed against Dierker in the sexual-harassment case is not a matter of public record. But the perceived bias in the order was addressed by Dierker himself in a letter to the plaintiff's attorney two months after he issued it.

"Dear Counsel," the Dec. 4 letter began. "It has come to my attention that my opinion in this case, issued last October, has caused distress in certain quarters.

"As a person who firmly believes in judicial restraint, my only concern is that the rather florid rhetoric of my opinion has led the parties to believe that purely personal views affected my judgment in this case," Dierker continues. "Although I do not believe that an objective observer would find that to be so, it has always been one of my goals as a judge to avoid creating a situation in which a party believes that he or she did not get an honest call -- however myopic or wrongheaded the party otherwise believes me to be."

The judge then goes on to suggest that if either party in the suit found the order a "triumph of rhetoric over reason," they could request the next presiding judge to reconsider the order. In a postscript to the letter, Dierker seems to hint at some regrets about his controversial order: "Samuel Johnson advised that, before publishing anything, you should read through your work, and strike out your favorite phrases. It is sound advice for lawyers and judges."

Catalona, the plaintiff's attorney, replied a few days later: "We plan to appeal your decision at an appropriate time," she stated. "We do not believe any other comment is appropriate." Catalona has since filed an amended petition, which is now before Judge Michael B. Calvin, the current presiding judge.

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