The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Bert E. Rathje
By Hon. William J. Bauer

When Bert Rathje was elected Judge of the DuPage County Probate Court, he was only the second person to hold that position (his successor, Philip Locke, was third and last). DuPage was then part of the 16th Circuit; DuPage, Kane, DeKalb and Kendall counties. In 1953, Senator Merritt Little of Kane county - with help from DuPage - successfully proposed a law to make DuPage a separate circuit, the 18th, with three judges, the constitutional minimum.

In 1956, Judge Keeney, who had been elected as a County Judge in 1953, ran successfully for Congress. He resigned from the circuit bench and created a second vacancy on that court. In the convention that followed, Probate Judge Rathje and County Judge William Atten were nominated and elected circuit judges in June, 1957. They were succeeded in the judicial positions by Judge William L. Guild, then state’s attorney, as county judge and Philip Locke of Glen Ellyn. Until their elections, Judges Rathje and Atten continued to run the county and probate courts from their positions of circuit judges; the circuit court being one of plenary jurisdiction.

In 1962, a Constitutional Court Reform was passed which, among other things, eliminated the positions of all courts on a trial level, other than the circuit courts (county, probate, city and municipal judges became associate judges [elected]); appellate court judges were, for the first time, elected. Circuit and associate judges continued to be nominated by convention but ran in the regular November elections; full circuit judges for six years, associates for four years. In addition, all of these were to be subject to non-partisan (?!) retention ballots for subsequent terms. All circuit judges whose terms would have expired in June of 1963 had, by terms of the amendment, extended terms until November of l964 at which time they faced only the retention ballot.

In July of l964, Judge Abrahamson was nominated for the appellate court; Judge Locke and (then) State’s Attorney William J. Bauer, were nominated and elected to the circuit court. (Incidentally, the amendment provided for the appointment of "magistrate judges", number to be based on a population as certified by the supreme court from time to time. The appointment was open - that is, no term except the humor of the appointing authority - the circuit judges. It was a court of quite limited jurisdiction, much like the old justice-of-the-peace system; lawyers were to be given preference and selected unless no "qualified" lawyers were available).

In l962, the circuit judges started the custom of electing a chief judge and Judge Abrahamson was elected briefly until he was appointed to the appellate court. He was succeeded by Judge Rathje who held the post until his death, being re-elected by his peers every three years. (There is a strong feeling that he would still be chief, if he were alive.)

Now let me say a few words about the man and the judge.

When Bert Rathje became a probate judge, probate and county judges could, and did, practice law, limited only by the caveat that they couldn’t practice in their own courts. Bert remained a partner of Rathje and Woodward during his tenure as probate judge and tried cases in the circuit court quite frequently, sometimes against Russell Keeney, the county judge. (I never missed a chance to see that action! And I learned a lot.)

As a lawyer, Bert was civil, decent, knowledgeable, productive, and had a large and faithful clientele. He handled just about every kind of case that existed and was a master at settling cases, somehow convincing everybody involved that he or she had gotten the best of the deal. Even his opponents loved him.

He pretty much conducted himself this way on the bench. My first appearance before a judge of a court of record was before him. I was closing out an incompetent’s estate and simultaneously opening a decedent’s estate, for a deceased member of a well-known family. Bert knew from the clerk that this was my maiden voyage and he not only eased me through this intimidating experience, he praised my work before the client, complimented me and thanked me for such a splendid piece of legal work. It was the beginning of my long, long love for him.

And, incidentally, this was characteristic of the way he treated everyone. He could rise to the indignation of driving the money changers from the temple, but the provocation had to be extreme, prolonged and inexcusable (even then, he was willing to believe in rehabilitation of even the most unlikely goofs!)

Among other things, he was willing to take on any case. He was a master at grasping the problems and in simplifying complex matters. He was probably the least reversed judge in the history of the county - or maybe the state. He had the endearing quality of listening carefully to the lawyers, the litigants and the witnesses and really paying attention to what was said. One couldn’t help but be convinced that, however he ruled, he was a good and wise man doing a difficult job to the best of his not-at-all-inconsiderable ability.

He was particularly helpful and decent to young lawyers; not surprisingly he loved children - all children - and considered almost everyone even slightly younger than himself to be such a child. He responded to requests for help like a fireman at the sound of the bell; he was off and running.

All in all, I tried cases before him for over thirteen years; civil cases, criminal cases, probate, equity, small cases, murder cases and whatever else there was. He became one of my most trusted and admired role models. I still miss him.

And that brings to mind another of his attributes: he sincerely worried about what it was he was doing. When he sentenced a criminal to the penitentiary, he agonized; he lost sleep. He never took the responsibilities lightly. I don’t mean he was neurotic or hand wringing; he was just not sure that any human being was adequately equipped to judge his fellow man. If ever a man was so equipped, it was Bert Rathje, but he was both humble enough not to believe it and smart enough to know that someone had to do it. He wanted to be both right and fair. And, of course, he was.

Because Bert had to be convinced that a penitentiary sentence was appropriate before he passed such a sentence, we struggled (in the prosecutor’s office) for ways to show him the awful side of bad defendants - and when we found a defendant who, besides the crime charged, was abusive to women or children, we paraded the fact with passion. Nothing was more likely to convince Bert that the defendant needed to be removed from society for at least a spell to contemplate his sins.

For all the fact that he had almost universal public appeal and approval, he didn’t consciously set out to gather it. He genuinely loved his job and genuinely loved people. He did not ever think, as near as I could see (and we were fellow judges for nearly six years) about what public opinion was nor, I suspect, did he care. A small illustration: in 1964, there was a highly publicized shooting by a police chief of a small town. The victim was a very prominent professional football player, and everyone involved was a "newsworthy" person. The chief was indicted for involuntary manslaughter. His actions were absolutely foolish, absolutely not in keeping with his role, and absolutely not intentional. He needed to be convicted (which would prevent his further work in law enforcement and keep him from firearms forever), but it was ridiculous to suggest that any purpose would be served by sending him to the penitentiary. So when, after four days of trial, the defendant (represented by one of the country’s most able defense lawyers) entered a plea of guilty, Bert sentenced him to a term of probation with all the appropriate restrictions on his lifestyle.

Most of the media, and all of the decedent’s family and friends, were expecting a prison term. When Bert passed sentence, the decedent’s mother (who had attended every minute of the proceedings) screamed in the courtroom, "You son-of-a-bitch, I knew this case was fixed." The bailiff leaped up and asked whether he should take her in custody. Bert said no, and asked the lady to come forward. She did. He said, "Mother, if I could bring back your boy by sending this man to the penitentiary, I would without a second thought. But I can’t and he really didn’t intend to do harm. Stupidity is not cured by punishment." The mother was unmollified. "You’re a crooked son-of-a-bitch. He killed my son and you don’t care," she screamed.

Once more the bailiff said, "Should I take her in custody, Judge?" And Bert, bless him, said, "No. If it were my son, that’s just how I’d feel. I’m very sorry, Mother. I’m doing the best I know how." And he left the bench. A thoroughly class act from a thoroughly classy man.

It is impossible to really get the flavor of Judge Rathje in any brief way. The man deserves a lengthy book. During the half dozen years we benched together, we also lunched together almost every day. He was a delightful companion; comfortable, witty, a master story teller, a man with great knowledge and curiosity. He was interested in an amazing variety of unrelated subjects - Greek mythology, Billy the Kid, sea worms, dinosaurs (the only time I knew him to voluntarily take an airplane was to visit the Museum of Natural History in New York, because they had an extraordinary dinosaur exhibition), barbed wire, Bet-A-Million Gates, the history of vaudeville, Western American history, Indian lore - and on all of these subjects, he could expound accurately, amusingly, and keep an audience of one or one thousand enthralled. He could have made a splendid living as a one-man lecturer, much like Mark Twain. What was also funny was that he was always surprised when someone asked him to speak - he was enjoying the subject so much he didn’t realize that it was his presentation that made it interesting to others, not the subject matter.

Bert died in September of l972 when he was 72 years old. I gave the eulogy at his funeral. I said then, and I say now: I never met a better man or a better judge. He loved his family, he loved his friends, he loved life. He was well loved but he was best at loving all of us - and showing it every day. I have missed him for twenty-seven years.

Honorable William J. Bauer (retired) has been a member of the United State Court of Appeals for the Seventh Circuit since January 3, 1975. Prior to that, he served on the District Court for the Northern District of Illinois, United State’s Attorney for the Northern District of Illinois, Judge of the Eighteenth Judicial Circuit, and State’s Attorney of DuPage County, Illinois. He practiced law with the firm of Erlenborn and Bauer, Elmhurst, Illinois and held the position of Adjunct Professor at DePaul University College of Law.

He is a graduate of Elmhurst College and DePaul University College of Law. He served as an instructor for the National Trial Advocacy and is past president of the DuPage County Bar Association. He is a frequent lecturer on trial and appellate practice and coauthor of a book on criminal procedure.

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