In the Chair’s Column of the December 2017 issue of the Bench and Bar Newsletter, Deane Brown provided a thought-provoking account of the “spirited discussion” among members of the Bench and Bar Section Council concerning the challenges facing lawyers and judges when dealing with unrepresented litigants. Deane’s article brought to mind the sometimes-conflicting duties of a judge to decide cases on the merits while maintaining an appearance of impartiality.

The conflict arises most often when only one party is represented by counsel. The dilemma faced by federal district court judge Jack Weinstein in Floyd v. Cosi, 78 F. Supp. 3d 558 (E.D.N.Y. 2015), illustrates the problem. Acting pro se, Floyd sued his former employer for racial discrimination under Title VII of the Civil Rights Act. The defendant’s lawyer filed a motion to dismiss (later converted to a motion for summary judgement) claiming that Floyd’s cause of action was time-barred. On its face, the complaint indicated that the action was time-barred because the discriminatory acts alleged occurred more than 300 days before Floyd had filed a complaint with the Equal Employment Opportunity Commission (EEOC). Of course, defense counsel and the judge were conversant with the “continuing violation doctrine” which permits plaintiffs to challenge all discriminatory conduct that is part of the same course of action even if some of the conduct occurred more than 300 days before the filing of the EEOC complaint. Not surprisingly, Floyd was unaware of the continuing violation exception and the fact that it might save his lawsuit.

Judge Weinstein debated whether to intervene on behalf of the plaintiff. On one hand, the judge could ask Floyd a few questions to see if the continuing violation doctrine applied. On the other hand, the judge could maintain a hands-off approach because pro se litigants are bound by the same rules as lawyers. If he intervened, the judge might ensure that the case was decided on the merits and that justice was done. But intervention on the plaintiff’s behalf might appear to compromise the judge’s impartiality because he would be helping one litigant to the disadvantage of another litigant. If the judge decided not to intervene and rely solely on what the parties presented, the appearance of impartiality would be preserved but at the potential sacrifice a correct disposition of the motion.

So, what did Judge Weinstein do? Believing that he was “required” to intervene, the judge asked Floyd leading questions about the timing of the alleged acts of discrimination. The plaintiff’s answers convinced the judge to deny defendant’s motion. It seems safe to say that Judge Weinstein’s questions led to a correct decision on the motion. But did his participation in the production of evidence helpful to the plaintiff create the perception of partiality?

Judge Weinstein appreciated the dilemma. He recognized that his intervention on behalf of an unrepresented plaintiff, even if necessary to do justice, created an appearance of favoritism. As a result, Judge Weinstein recused himself from further participation in the case. The case was transferred to another judge who would inevitably face the same predicament as Judge Weinstein, this time in the context of supervising discovery and conducting the trial.

How should an Illinois judge deal with the situation that confronted Judge Weinstein? Unlike the code of conduct governing federal judges, the Illinois Code of Judicial Conduct contains a provision explaining a judge’s duty in pro se matters. Canon 3(A)(4) of the Illinois judicial code permits judges to “make reasonable efforts, consistent with the law and court rules, to facilitate the ability of self-represented litigants to be fairly heard.” Does this provision help Illinois judges decide whether to intervene in a proceeding in which only one party has an attorney? I will leave the resolution of that question to the next meeting of the Bench and Bar Section Council.

And so what happened to Judge Weinstein’s case after it was transferred to a new judge? As some of you more seasoned lawyers and judges might guess—it settled. 