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

It began almost immediately after she called it quits, the lawsuit contends, harassing nightly phone calls and repeated requests for sex. It was as if the doctor, working at a St. Louis hospital, didn't understand his secretary's pleas for him to stop, couldn't help himself or didn't care. Maybe he thought persistence would pay off.

The two had a long-standing relationship, after all. Having worked at the hospital since 1981, the woman became the doctor's patient in 1989. He was a director of psychiatry.

Four years after that, the woman was transferred by the hospital to the doctor's office as his secretary, despite the fact she was his patient and despite the fact the hospital knew the doctor's "propensity for sexual harassment of women placed under his supervision," according to the suit. Within weeks, they began having sex.

Several months after it started, the woman ended the affair. But the doctor began calling her every night on her car phone or at home and, when he couldn't reach her there, tracked her down and called her at friends' homes. She asked him to stop.

During the day, at the office, the doctor began trying to touch the woman's breasts and buttocks and exposed his genitals to her, requesting that she perform sexual acts. She didn't, and again asked him to stop. According to the suit, the doctor continued his behavior for seven more months.

Then the woman was fired.
One year later, she filed suit in federal court against the hospital and the doctor, in part under common law -- which protects citizens who are victims of battery -- and in part under Title VII of the Civil Rights Act of 1964, which protects employees who are victims of sex discrimination. The suit was dismissed, in part because under the federal law, an "employer" is defined as someone who employs at least 15 people, which the doctor did not.

Last year, then, the suit went to the state court, where the woman's attorney, Janet F. Catalona, argued that her client was the victim of intentionally inflicted emotional harm by the doctor, whose conduct was so extreme and outrageous that it caused the woman to experience "emotional distress, mental anguish, anxiety, stress, embarrassment, humiliation, and pain and suffering."

The doctor's attorney, Eric A. Todd, argued that the case should be dismissed, in part because "not only must defendant's conduct be so extreme in degrees as to go beyond all possible bounds of common decency, but liability 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.'"

But this is not a story about sexual harassment. It is not about one woman who refused to have sex with her immediate supervisor and wound up the victim of professional vindictiveness. Conversely, it is not a story about a man who had a consensual sexual relationship with an employee and then found himself victimized by a sexual-harassment lawsuit.

Rather, it is about how the court system tries to grapple with the challenge of keeping the judiciary free of personal bias and politics and about how, sometimes, it fails.

The case landed in the courtroom of then-Presiding Judge Robert H. Dierker Jr., of the 22nd Circuit Court in St. Louis, who issued his controversial 16-page order on Oct 5. Before tackling the woman's specific allegations, Dierker engaged in a lecture about the sexual politics of the late 20th century:

"From Anita Hill to Monica Lewinsky, the cry of 'sexual harassment' has been selectively raised to advance certain groups' political agendas under the guise of promoting equal opportunity in the workplace, or under the banner of 'equality' in academe," the opening paragraph of Dierker's order reads, citing chapter and verse from Slouching Towards Gomorrah, a book written by failed Supreme Court nominee and ultraconservative Robert Bork.

"Spawned in the protean atmosphere of federal employment discrimination litigation ... the theories of the 'sexual harassment' police have stretched their tentacles from college facilities to Supreme Court confirmation hearings to legal and judicial ethics ... and now seek to ensnare the common law of torts," Dierker continues. "The Court concludes that the common law does not enact Cardinal Newman's definition of a gentleman, nor Catherine (sic) MacKinnon's vapid maunderings, and that Plaintiff's petition at present fails to state a claim."

Dierker moves on to the two counts filed by the woman: Count I, alleging "intentional infliction of emotional distress;" and Count II, which "alleges the same facts, but attempts to state a claim for negligent infliction of emotional distress."

According to law, Dierker states, intentional infliction of emotional distress must contain the following elements: "defendant acted intentionally or recklessly; defendant's conduct was extreme and outrageous; the conduct caused severe emotional distress; and the conduct was intended only to cause extreme emotional distress to the victim."

Dierker states: "Indeed, as pleaded, the facts alleged at most show that Defendant was seeking to gratify his own sexual urges despite rejection by Plaintiff.

" ....it seems clear that, except for the denizens of the cloud-cuckoo-land of radical feminism, no court has held that sexual advances are ipso facto actionable. More is required to establish a tort than a rejected advance."

"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?"

Peter Joy, a law professor at Washington University, walks an analytical line of slightly wider berth. "I think an argument could be made that this is something that might diminish the integrity of the judiciary or the integrity of the judge, but that's going to be a matter I suspect people will take different opinions on," he says.

"On the one hand, someone may argue that the judge has a First Amendment right of freedom of expression," Joy continues. "On the other hand, a person might say that the First Amendment right really has to yield if what is being expressed raises questions about whether this judge is acting in a fair and impartial way towards the litigants appearing before him."

But for the plaintiff and her attorney (neither of whom could comment, on or off the record), walking into Dierker's courtroom was not an unpredictable trek through unknown territory. The judge's political passions were well-known long before he, as presiding judge, accepted the case in the first place.

In the 1997 Law Day edition of the St. Louis Daily Record, for instance, the theme was "Celebrating Your Freedom." In that issue, local judges, lawyers and law professors contributed standard articles such as "Lawyers Play Vital Role in Struggle for Freedom" and "Celebrating Our Freedom on Law Day."

But one, written by Judge Dierker, stood out: "Celebrate Your Freedom -- Judges Permitting."

Dierker made no secret of his political beliefs. A Harvard graduate and former associate city counselor for the city of St. Louis, Dierker was appointed to the bench in 1986 by Republican former Gov. John Ashcroft, and, in the Law Day article, praised Ashcroft's attempts as a U.S. senator to bring down the "oligarchy of judicial activists."

For anyone familiar with judicial politics, the title of the article alone set off alarms. Dierker was writing -- sympathetically -- about a staunchly conservative political drive to push "liberal" and "activist" judges off the bench. During the last two years, Ashcroft has led the Republican-dominated Senate's attack against President Bill Clinton's nominees, leaving a serious number of federal judicial vacancies unfilled. Even Chief Justice William Rehnquist -- no defender of liberalism, named to the high court by President Richard Nixon -- has asked the Republicans to end the blockade.

It is a belief actively embraced by a lingering number of conservatives -- including members of the Christian Coalition, the Heritage Foundation and the Eagle Forum -- that a "liberal" judiciary is attempting to usurp the will of the people on a grand scale by overturning laws enacted by Congress, state legislatures, executive orders or public referendums.

They crusade against what they call "judicial activism," and though the political concept is at least as old as the Constitution itself, it was not until a decade ago, when former federal Judge Robert Bork was bypassed for the Supreme Court seat and then lambasted the system as an "antidemocratic, indeed despotic judiciary," that conservatives, including Judge Dierker, turned public courtiers of the idea.

Bork's nomination to the high bench was originally opposed by groups such as the Alliance for Justice, because they feared Bork's political philosophy would inhibit the conservative's ability to rule impartially.

A few years before his nomination, for example, Bork wrote that "difficult as white-black relations have been and are, the influx of Hispanics and Asians promises to make the tensions even greater as Americans fight over group entitlements. Radical feminism and the homosexual rights movement are dividing us even further, while the madness of multiculturalism threatens to make our culture a chaos."

In the opening of his Law Day article, Dierker quotes Bork at length. Even in his order concerning the sexual-harassment case, the judge refers readers to Bork's Slouching Towards Gomorrah, a truly cheerless political forecast written in 1996. Tim Lynch, assistant director of the Center for Constitutional Studies at the Cato Institute in Washington, D.C., a nonpartisan public-policy research institute, says the constitutional job assigned judges is simple: Look at laws passed by the people or their elected representatives and make sure those laws are constitutional.

"Conservatives use terms like 'judicial activism,' or 'defer to majority will' or 'whatever the people's elected representatives have decided is good public policy,'" Lynch says. "They speak in those kinds of terms as though overturning a law is some kind of extraordinary event that should be very rare.

"But we think the role of the courts is to protect individual rights and to protect the Constitution, so they should be very aggressive in scrutinizing laws," Lynch continues. "We think the term 'judicial activism' is vague and misleading, because conservatives tend to use it as describing courts that overturn laws or the will of the people. But whenever the courts make a decision or decide something is unconstitutional, well, that's what judicial review is all about. It's what the courts are supposed to do."

One of the most-cited examples of judicial activism is when California voters approved prohibiting affirmative-action programs with Proposition 209 in 1996. After the vote, U.S. District Judge Thelton Henderson ruled the law unconstitutional because minorities would "face an immediate possibility of irreparable harm." Conservatives such as Ashcroft say Henderson overstepped his judicial role, because, as Ashcroft told conservative Christian radio host Chuck Baldwin on a recent show, "Perhaps someone should remind Judge Henderson that the constituting doctrine of all truly free societies is that rights belong to individuals, not groups. Tragically, the courts have turned your individual rights into group rights as the aggrieved rush to our least representative branch in search of entitlements."

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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