Topics: Federal Judge, Notary, Federally Certified Tax Expert, Independence, Judge Selection, Judiciary, Separation of Powers, Politics, Justice, Public Sessions, Career Tips, Richterzeitung, University of Fribourg, University of Basel, die Mitte, Public Law Division, Federal Court.
Information about the person on Weblaw People: Dr. h.c. Thomas Stadelmann.
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Good morning Mr. Stadelmann. We greatly appreciate that you were able to take the time for this interview. Could you please describe your professional career and, in particular, elaborate on your path to becoming a federal judge?

Thank you for your interest and the opportunity to present a few thoughts on questions related to the judiciary.

Regarding your question about my career: After completing my law studies in  Fribourg  and obtaining my attorney and notary licenses, I ran my own practice in the canton of Lucerne for about 14 years, initially in a practice community with my father and later with my brother. Additionally, I have always been involved in the judiciary: first as a part-time court clerk at the Criminal Court of the Canton of Lucerne, then as an extraordinary secretary of the Tax Appeals Commission of Obwalden, and finally as a part-time judge at the Administrative Court of the Canton of Lucerne.

In 1997, the system of the Administrative Court in the Canton of Lucerne was changed, and the part-time judge positions were replaced with full-time positions (50%). Since I have always enjoyed judicial work, I applied for one of these full-time positions and gave up my legal practice. At the Administrative Court, I worked in the Tax Law Department due to my training as a certified federal tax expert. At the same time, I was also elected as a part-time judge to the Federal Tax Appeals Commission.

It was advantageous for me that the claim of the CVP to the seat was recognized. Additionally, the court commission explicitly sought a tax lawyer in the job advertisement. - Dr. h.c. Thomas Stadelmann

With the federal judicial reform, the federal appeals commissions were dissolved at the end of 2006 and replaced by the  Federal Administrative Court. I applied for a judge position at this newly created court and was subsequently able to take over as chair of the Tax Law Chamber.

In the fall of 2009, the opportunity arose to apply for the position of federal judge: a position was advertised in the II. Public Law Division, which was, among other things, responsible for tax law (which accounted for about one-third of the division's caseload). It was advantageous for me that the claim of the CVP to the seat was recognized. Additionally, the court commission explicitly sought a tax lawyer in the job advertisement; reportedly, the parliament was dissatisfied with the internal staffing practices of the  Federal Court  that had led to the absence of any judge with specific training or at least experience in tax law at the court.

You say the internal staffing of the Federal Court had led to parliament's dissatisfaction, resulting in the absence of any judge with a tax law background at the court. But isn't it the parliament itself that decides who serves on the full court?

Yes, you are right with this objection. And it was indeed the parliament itself that, upon the resignation of tax law judge Danielle Yersin in 2008, failed to ensure that someone with experience in this field continued to serve at the court. However, from the parliament's perspective, the problem was accentuated during the full re-election in the following year: the parliament or the court commission usually considers the needs reported by the Federal Court when filling positions. In this case, during the full renewal in 2009, due to internal reshuffling in the  II. Public Law Division, there was no vacancy, and the court reported to the court commission that civil law and social security law specialists were needed. The court commission accepted this and informed the tax law candidates from three different parties — I was one of them — that due to the court's needs, tax law specialists were not needed at that time and that our candidacies could not be considered. Following this, there was dissatisfaction in parliament, and it was argued that it could not be that no one at the court had specific training or at least experience in tax law.

What motivated you to become a federal judge after already running your own law and notary office?

As you can see from my previous answers, I did not give up my law and notary practice to become a federal judge. I have always been significantly involved in the judiciary, and when the change occurred at the Administrative Court of the Canton of Lucerne, I had to choose between law and notary practice or judicial work.

What I also greatly enjoy about judicial work is the opportunity to engage in professional discourse with competent individuals who also strive to find solutions through open-minded exchanges. - Dr. h.c. Thomas Stadelmann

Although my work as an advisory lawyer and notary brought me great satisfaction, I decided to pursue a judicial career. The decisive factor was that the opportunities presented by the judicial office, particularly in the area of administrative law, greatly appealed to me: not so much the establishment of the facts, but the development of legally sound solutions with a methodically correct approach. The intellectual challenges associated with this give me a great deal of satisfaction. What I also greatly enjoy about judicial work is the opportunity to engage in professional discourse with competent individuals who also strive to find solutions through open-minded exchanges. I particularly appreciated this aspect during my time at the Federal Administrative Court and am fortunate to find it again now at the end of my career.

What does your typical workday as a federal judge look like?

My workday primarily consists of reading, writing, and thinking. Currently, I rarely have the opportunity to write my own opinions. I read the contested judgments, the complaints, and the draft judgments, which are mainly prepared by the court clerks. I strive to form my own opinion on the questions at hand and check whether the solutions presented to me are consistent with it. If I have differing views, I write and present my considerations. The basis of all these activities is, of course, always the reading of case law and literature.

Occasionally, writing is not enough, and oral exchanges with my fellow judges are required. We usually try to find solutions in internal meetings.

You mentioned internal meetings, but doesn’t the Federal Court have to deliberate publicly?

You are correct, Article 59, Paragraph 1 of the Federal Court Act stipulates that oral deliberations are public. However, the Federal Court interprets this provision to mean that prior internal deliberations are also possible, during which minor differences can be resolved. In practice, internal deliberations are conducted when there is a prospect of reaching an agreement. Furthermore, it is common practice that if no agreement can be reached, public deliberation is often waived, and the minority formally submits to the majority. Public deliberations are usually held only if the dissenting minority feels that they cannot support the majority result under any circumstances.

In my experience, there are very few public deliberations in which the participants are persuaded to change their opinions by the arguments of their fellow judges. - Dr. h.c. Thomas Stadelmann

In my opinion, this practice shows that public deliberation is a misconception if one considers the decision-making process: in my experience, there are very few public deliberations in which the participants are persuaded to change their opinions by the arguments of their fellow judges. Rather, in most public deliberations I have been involved in, the focus was on the members of the panel expressing their respective opinions, followed by the vote.

However, if the purpose of public deliberation is to make the differing opinions of the panel transparent, there are reasons to support its continuation. To achieve this purpose, however, it would be much more effective to introduce dissenting and concurring opinions: with these, the differing opinions would not only be exposed to the audience present — since the arguments of the dissenting minority are not regularly presented in the judgment even after a public deliberation — but they would be permanently accessible to the broader interested public (especially the academic community). This could also significantly contribute to improving quality, as the prevailing majority would be more inclined to respond clearly and distinctly to the arguments of the minority.

Do economic or political reasons also play a role in the Federal Court's interpretation of Article 59, Paragraph 1 of the Federal Court Act?

That is a very interesting question. It is likely that procedural economic considerations often lead the minority to forgo public deliberation and formally submit to the majority: this is done with the consideration that it does not really justify a large effort — with a session lasting several hours and, above all, preparation for it — "just for the (usually numerically small) gallery" if it is clear from the outset that the outcome will not change anyway. On the other hand, it occasionally happens that a panel conducts a public deliberation based on political considerations, even though the overall result is already determined: the goal is to bring the background of the decision closer to the public.

How do you deal with the mental strain that arises from handling and analyzing complex cases?

The challenge of complex cases does not pose a mental strain for me. Rather, this challenge motivates me, and when a "coherent" result is achieved in the end — possibly after discussions with court clerks or fellow judges — it gives me energy.

What qualifications do you think are necessary to become a federal judge?

When answering this question, I must differentiate. If the question is about the qualifications that are factually necessary, the answer is quite simple: you have to be in the right party, one of those that currently have a claim to seats. Of course, it is helpful if you have a proven track record in law.

Much more decisive than the question of the judges' party-political affiliation is their understanding of their role. Judges who see their role as developing the law instead of the legislature are questionable. - Dr. h.c. Thomas Stadelmann

If you want to know what I consider desirable, I must elaborate a bit. We are talking about the highest judicial office in Switzerland; therefore, in my opinion, judicial experience is desirable. Of course, the (now) 40 judges can occasionally tolerate a lateral entrant, but this should remain an exception. Furthermore, excellent professional qualifications are indispensable. But that's not all. Equally important are methodological and social skills. And – something that has hardly been discussed until now – the judicial image, the attitude towards the separation of powers, and similar issues should definitely become topics during the selection of judges: much more decisive than the question of the judges' party-political affiliation is their understanding of their role. Judges who see their role as developing the law instead of the legislature are questionable. Accordingly, they do not seek decisions based on the foundations provided by the legislature through a methodical and open-ended process, but rather aim for the outcome that best corresponds to their (political) views.

You were elected as a federal judge as a member of the Center party. What role does politics play in a judge's career?

Politics is the be-all and end-all for a judge's career in Switzerland – with some cantonal exceptions. Particularly at the federal level – as I just emphasized when discussing the prerequisites for becoming a federal judge – you must declare yourself affiliated with the right party. Unfortunately, in some parties, one must also commit to making a – sometimes substantial – financial contribution to the party after being elected.

Apart from the election requirement, politics plays practically no role in a judge's career. And as mentioned earlier, if judges are "politically active," which is indeed noticeable – I refer here as an example to the recent discussion on the ECHR – this is not a matter of the role of politics in a judge's career, but rather an expression of a – in my opinion, regrettable – judicial attitude.

You are a co-founder and editor of the  Richterzeitung. What topics are currently the focus of attention in the judicial world?

Many of the questions we have been addressing since the journal's founding in 2005 have remained the same. Unfortunately, ongoing issues include the pressure on judicial independence, the problem of short terms of office and re-election, and issues of oversight and supervision. Also ongoing are the topics of the quality of judicial work and judicial ethics. A new aspect is AI: what impact does this transformative general innovation have on the judiciary, and how is the judiciary dealing with it? And a topic that has always been present but has now become more pronounced is judicial activism, the overstepping of competencies by the judiciary – the counterpart to judicial independence, which had hardly been addressed before.

You have expressed concerns in the past about political influence on the judiciary. What solutions do you recommend to protect the independence of judges?

The solutions are easy to formulate; so far, there has simply been a lack of political will to implement them:

Re-elections, which are the main problem for judicial independence, must be abolished. Judges should be elected for a fixed, relatively long term – for example, 15 years for the Federal Court. Naturally, this change should be accompanied by the creation of oversight mechanisms: what is needed is judicial disciplinary jurisdiction, which should provide for graduated disciplinary measures, with the ultimate measure being removal from office.

Regarding judicial elections, we do not have a problem of independence, but rather a quality problem on the one hand, and a need for action to limit judicial activism on the other. The election procedure should be redesigned so that the quality of candidates – in terms of expertise, methodology, and social skills – and their attitude towards the rule of law and separation of powers are the only decisive criteria.

As a further measure to limit judicial activism and restore the primacy of the legislature, the Schubert practice should be explicitly enshrined in Art. 190 of the Federal Constitution. Additionally, Parliament should be given a decisive role in determining whether and how decisions of the European Court of Human Rights should be implemented.

Editor's note: Additional information on the topic of Schubert Praxis and Article 190 of the Federal Constitution can be found in the Jusletter article  Verfassung – Bundesgesetze – Völkerrecht: Besteht Bedarf auf Anpassung der Bundesverfassung?  by Thoms Stadelmann in the Jusletter issue of October 7, 2019.

The  University of Basel  awarded you an honorary doctorate for your commitment to judicial independence, separation of powers, and access to justice in European countries with threatened rule of law. What developments have you observed in recent years?

The situation of the judiciary, i.e., its independent status, has generally deteriorated. This is particularly due to the rise of populist regimes that attempt to instrumentalize the judiciary for their purposes. However, developments like those in Poland provide some hope, showing that such tendencies are not irreversible.

In this context, I would like to note that it is not helpful when the judiciary itself oversteps its prescribed boundaries and begins to make political – and possibly populist – decisions. This, rather than the criticism of such behavior, as is falsely claimed, further undermines trust in the judiciary. The judiciary, whose independence is a guarantee for those seeking justice, is thus done a disservice.

What advice would you give to law students interested in a career at the Federal Court?

A career at the Federal Court, understood as a position as a federal judge, cannot be planned; it is dependent on many coincidences. Therefore, I would refrain from giving specific career advice in this regard. More important, in my opinion, is the reminder that a world of possibilities opens up to a law student after graduation. Find out what fascinates you and get involved in that area.

Thank you for the fascinating insights into your career and your work at the Federal Court. We wish you all the best!

_{Translated by AI}