MacIver News Service | January 26, 2018
By M.D. Kittle
MADISON, Wis. – In the spring of 2016, Judge Joe Voiland began noticing information disappearing from his online court case files. Just little things at first, here and there.
Upon a more detailed inspection, he found much had been changed or deleted from the files – without his knowledge or approval.
The Ozaukee County Circuit judge took his concerns to then-Jefferson County Judge Randy Koschnick, who also served as chief judge in the Third Judicial District. Koschnick, who is now Wisconsin’s director of State Courts, was concerned enough to get the director of the Consolidated Court Automation Programs (CCAP), the online state court records system, involved.
An examination of dozens of Voiland’s case files found someone had indeed been messing with the records, a felony crime – depending on intent.
Soon the state Department of Justice would open a lengthy investigation into the complaint.
After a year and a half and some prodding for a resolution by Koschnick, the DOJ recently released its report concluding – without explanation – it would not seek charges in the matter.
While it appears violations of the law at some level took place, what the Justice Department’s investigation fully exposed was breathtaking dysfunction in the Ozaukee County court system. A place where the administration of justice often seems hampered by a county clerk and an administrative staff that Voiland claims has an ax to grind against a judge they insist has created a “hostile work environment,” a judge who is unwilling to do things as they have always been done.
Voiland makes it clear in the DOJ report, however, that doing things the way they have always been done means breaking the law. A MacIver News Service investigation, including a review of the 300-page report, emails and other documents has found that, in many respects, the judge is correct.
From the Beginning
Records obtained by MacIver News found that sniping and discord began early in Voiland’s tenure, and the bitterness has intensified over time.
In 2013, the veteran and attorney handily defeated incumbent Judge Tom Wolfgram after criticizing Wolfgram for betraying his impartiality by signing a recall petition against Republican Gov. Scott Walker in 2011. Documents show Voiland believes Ozaukee County Clerk of Court Mary Lou Mueller, court staff members and the two other judges preferred three-term Wolfgram to the newcomer, and they seem to have made that clear from Voiland’s investiture in January 2014.
Court staff, without the consent of Voiland, scheduled the public ceremony, inviting guests and sending out a press release to the local newspaper. Voiland had made it clear that he wanted his friends and family at the event and that he wanted U.S. Circuit Court Judge Diane Sykes, whom Voiland had previously clerked for, to lead the ceremonies. That’s standard practice in investitures.
Mueller told MacIver News Service that she and her staff were just trying to make the judge feel welcome. Voiland declined to comment for this story, but emails from the time make it clear he believes Mueller and staff acted out of spite.
Things got so bad that in 2014 the clerk’s office, while training employees on maintenance of Family Court records, used Voiland’s personal divorce file as a “template for training,” according to the DOJ investigation notes. Staff member Sue Altendorf made Voiland aware that his divorce records – from another county – were on display in the training sessions. It was Mueller’s former sister-in-law, Connie Mueller, chief deputy clerk of courts, who used Voiland’s case. In an interview with DOJ agents, Voiland said his divorce file was clearly used to embarrass him.
Mary Lou Mueller eventually apologized to Voiland in an email, investigation records show. Voiland was not satisfied. In another email, Mueller wrote, “Judge, the clerk has apologized to you and has said she will not speak about your family case to staff again. This is now an internal matter between me and my staff. Therefore, the matter is concluded between us. Thank you.”
Here Come the Judges
The dysfunction extends beyond the open hostility between the Clerk of Court’s office and Voiland. The DOJ report exposes internal discord among the county’s judges, too.
Branch 1 Judge Paul Malloy, who heads up the three-judge court, at one point had to apologize for yelling “very loudly…nearly nose to nose” in Voiland’s face during an argument the judges had. Voiland had repeatedly complained that Mueller refused to file his requests for records and other court documents, a complaint that the apparently conflict-averse Malloy failed to address.
In a snarky email about Voiland’s ideas on court scheduling to Michael Neimon, Third Judicial District Court administrator, Malloy complained that Voiland is the only one of the judges who seems to have scheduling problems. Malloy goes further in alleging that Voiland has “put so many roadblocks in the way… ”
“Oh by the way he is gone because he has to write a decision and there are to (sic) many interruptions here. Welcome to the real world,” Malloy wrote. “Anyway I would like to let him know my thoughts on this but I am bound and determined to enjoy my holidays and not get into it with him. I guess in concluding my thoughts, if he could work standard hours Monday through Friday there would not be an issue.”
The email was dated Dec. 22, 2014. Malloy, it appears, did not intend to include Voiland on the communication. But he did.
Voiland responded by challenging Malloy’s allegations and, it appears, disproving them.
In an email on Jan. 27, 2015, after Malloy presumably determined to enjoy his holidays, Malloy wrote an email to Voiland, Neimon, and Koschnick, the chief judge, apologizing for his inaccurate statements.
“Mike, I would like to correct the information in my email of December 22nd, 2014. After meeting with Judge Voiland, I no longer believe my comments about his availability during working hours or his court scheduling practices are accurate,” Malloy wrote, citing a “significant miscommunication” for the error. “The fact is that he did work regular hours and his court scheduling practices were appropriate. I have apologized to him for any misunderstanding.”
Dysfunction in government is one thing. Misconduct in office is quite another. That’s what Voiland alleges went down at the Ozaukee County courthouse.
Voiland, according to the DOJ report, accuses Mueller, Malloy, and Ozaukee County Circuit Court Commissioner Barry Boline of exceeding their authority in dealing with court documents and other court matters
Voiland asserts Mueller and her staff backdated multiple court documents, deleted dates, and even changed the status of a probate case.
“Judge Voiland stated, from examining this form versus the actual case file, it is clear that the Clerk of Court had changed the case designation from ‘Formal Administration’ to ‘Informal Administration’ on this form,” the DOJ report states. “Judge Voiland stated this change is not to be made without telling Judge Voiland.”
The change had the effect of the clerk of court granting an extension to complete the estate case, a power that clearly is the authority of the presiding judge.
“Judge Voiland stated that it appears Mueller, who is friends with a number of attorneys, altered these records in this matter to give additional time (an extension), to the parties involved, to complete these estates,” the report states.
Jean Bousquet, chief information officer for the Consolidated Court Automation Programs, or CCAP, reviewed the court documents in question and found, using meta data, that the changes had been made, as Voiland had complained. Bousquet did not return a call from MacIver News Service Friday seeking comment.
Mueller insists the allegations are “false and unfounded.” Of course records were changed, the court clerk said. As the county has transferred to an all-online court records system, there was some “cleanup” in order.
“It was housecleaning is what it was, correcting mistakes on the record,” Mueller told MacIver News Service in an interview. “There were mistakes across the board. It’s equal among all the judges. It wasn’t focused just on him.”
To that end, Mueller said there was no backdating of documents, merely corrections. The DOJ report did find that there was not a “spike” in court cases shifted to Voiland’s docket as the judge had contended.
As for granting extensions without the judge’s approval, Mueller said she is also the county’s register in probate. Other judges in the past have granted her the authority to “do case management.”
Voiland is not one of those judges, however. The DOJ report makes it clear that the county clerk’s office made changes and granted extensions without Voiland’s approval.
That was a concern, too, for Koschnick. The chief judge viewed the documents in question. He told DOJ agents that “he has some serious concerns and stated he thinks Judge Voiland is correct in many of his concerns.” He feared there may be proof the clerk “altered and erased records using Judge Voiland’s electronic signature without authority, in changing probate cases from ‘formal’ to ‘informal’ and back to ‘formal’ without the Judge’s approval, essentially making decisions only a judge can make.”
Koschnick declined to comment on the DOJ’s investigation, but the report shows he intervened on several occasions when he thought the clerk had overstepped her authority.
Things got really dicey when Voiland ordered physical placement studies, as required by law, through the Ozaukee County Family Court Services Office. He learned that the county hadn’t provided legally required services for years, and that the mandated funds paid by parties into what is supposed to be a segregated account went into a general fund.
“The Ozaukee County Family Court Services Office does not provide legal custody and physical placement studies. Ozaukee county does not have a cooperative agreement to establish such an office that provides legal custody and physical placement studies. The Director of the Family Court Services does not have a contract with any person or public or private entity to provide legal custody and physical placement studies,” Boline, the court commissioner, wrote in a letter on June 8, 2015, addressing Voiland’s concerns.
It seems Malloy, the court, and, ultimately, the county were in a bit of a pickle. They had not been in compliance with the law for some time. Voiland, as he seems wont to do, pressed the issue. He continued to order services the county did not offer. And Malloy, the head judge, told Boline to ignore Voiland’s orders, according to the report. Malloy wanted to wait until the county government dealt with the lapse in services. Voiland played a DOJ investigator an audio recording of Boline telling Voiland that “Judge Paul Malloy had ordered Commissioner Boline not to follow an order which Judge Voiland had issued” regarding a Family Court Services matter.
Koshnick had to tell Malloy not to order Boline to disregard Voiland’s orders. “Judge Koschnick stated he told Commissioner Boline he must follow Judge Voiland’s orders unless such an order was illegal,” the report states.
Koschnick, it seems, often had to play peacekeeper between warring parties. Mueller often complained about Voiland’s interpersonal skills.
“…I am concerned with the actions of a judge and his demeanor to clerk of court’s staff. On more than one occasion I have received reports from staff that a judge has treated them in such a way that may be characterized as uncivil, abrasive, demanding, or hostile,” the clerk wrote to the chief judge. “Another recent event has occurred and I no longer think we can chalk it up to inexperience or uniqueness. I do not want to go into specifics in this email, but I think it is time we have a discussion about the behavior and how best to address the issues.”
Koschnick did have the discussion, according to the DOJ report, and found Voiland “was not guilty of the allegations and had acted appropriately.”
Things got so heated at one point, Koschnick threatened to step in and run the court’s administrative duties.
In one email, Voiland writes Mueller that he wants the clerk of court’s office to “follow the statutes and the Supreme Court rules.”
“Staff does not have any authority to apply the law to the facts in any case, and has no authority to make decisions relating to a case,” he wrote. “By saying that staff made a decision because ‘an officer of the court represented to her ‘it wasn’t in the best interest of the court to hold the hearing,’ you’re really just saying she made a decision she had no authority to make.”
Mueller said she has complied with every legally required order, that Koschnick never talked to her about Voiland’s complaints, that he “just took the word of Judge Voiland.”
The clerk of courts claims Voiland believed from the beginning of his time on the bench that “we were out to get him, no matter how far we bent over backwards to accommodate him.”
“Nothing was ever right. It became exhausting, and it continues to be exhausting here,” Mueller said. “Is it hostile here? It’s not a great working environment right now.”
A spokesman for the Department of Justice did not return MacIver News Service requests for comment. He said he needed specific case information, which MacIver News provided several days ago. The spokesman did not follow-up.
So it’s not clear why the DOJ declined to issue charges. Perhaps the agency’s reluctance involved the threshold required in proving malicious intent. The report and its accompanying exhibits certainly raises questions.
During one of the interviews with DOJ agents, Koschnick said, “Judge Voiland does have a number of valid complaints, and is changing things in Ozaukee County according to his statutory authority.”
Perhaps such authority doesn’t sit well with the Ozaukee County establishment.