MacIver News Service | March 12, 2018
By M.D. Kittle
MADISON, Wis. – Of the many allegations of misconduct lodged against the Ozaukee County Court System, its apparent shell game with family court services is perhaps the most troubling.
As MacIver News Service first reported in late January, the state Department of Justice conducted a 15-month investigation into a number of complaints against the Ozaukee County Clerk of Courts office originally brought by Ozaukee County Judge Joseph Voiland. Voiland won his seat on the bench by defeating a popular incumbent judge who had signed a petition calling for the recall of Republican Gov. Scott Walker.
As detailed in the DOJ report, officials at the state Consolidated Court Automation Programs (CCAP) confirmed initial allegations of multiple missing or changed court records.
The Justice Department released its report concluding – without explanation – it would not seek charges in the matter.
But the report and subsequent news accounts about it generated enough concern by Wisconsin Court System officials that they initiated an administrative investigation, still ongoing.
It appears violations of the law at some level took place in a county court system that suffers from breathtaking dysfunction and interpersonal feuds.
While county court administrators have tried to explain away the allegations against them – often by telling investigators how well they do their jobs – the failure of the county and its circuit court to follow state law on family court services has been considerably more difficult to defend.
“I think that’s a complicated question,” Rhonda Gorden, Ozauakee County corporation counsel, said in response to MacIver News Service’s question on whether the county broke the law requiring Wisconsin counties to provide funding for family court services such as legal custody and physical placement studies.
Fees for family court services must be “deposited by the county treasurer in a separate account to be used by the county exclusively for” family court services, in accordance with state law.
Ozaukee County collects $20 per court filing involving family court matters. That amounts to thousands of dollars that is supposed to go into a segregated fee to help cover the costs of placement studies, mediation and other family court services.
But county officials, including the county’s senior judge, have made it clear that Ozaukee County doesn’t have the money to pay for the state-mandated services, and they’re not going to. So what happened to fees supposedly used for family court services? That’s not entirely clear.
Ozaukee County Treasurer Joshua Morrison didn’t seem to know that his office was responsible for the account when MacIver News first sought information.
“We don’t have that here,” he said. Gorden later said that the treasurer was “just confused. He doesn’t work with the lingo and terminology.” He did have such an account labeled family court services, Gorden said.
The county wasn’t in compliance with state law for many years, neither providing funding for the services nor apparently segregating filing fees into a separate account, based on documents obtained by MacIver News through an open records request. It appears that even after the county created an ordinance in July 2016, the Ozaukee County court system has failed to meet the terms of state law.
An outside attorney brought in by the county’s insurer to handle open records requests did provide MacIver News Service with documents showing some line items for 20 custody studies dating back to July 2015. The fees vary from $350 to $1,250. The records include several monthly county treasurer reports from 2017, going back to April of last year. Those reports, however, include everything from amounts collected for attorneys fees and witness lodging reimbursement to failure to appear forfeitures. It’s basically a hodge-podge of fees and payments, many of which having nothing to do with the family court services in question.
The problem became pressing in 2015, when Voiland began ordering 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 fees paid didn’t go into a separate account.
“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,” Barry Boline, the Ozaukee County court commissioner, wrote in a letter on June 8, 2015, addressing Voiland’s concerns.
It seems Ozaukee County senior Judge Paul Malloy, the court, and, ultimately, the county were in a bit of a pickle. Voiland, as he seems wont to do, pressed the issue. He continued to order services the county had failed to provide. And Malloy ordered Boline to ignore Voiland’s orders, according to the DOJ report.
Malloy wanted to wait until the county government “fixed” the problem with a new ordinance. 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. That, too, is a violation of the law.
Randy Koshnick, director of state courts, at the time was chief judge of the Third Judicial District, which includes Ozaukee, Jefferson, Washington and Waukesha counties. Koschnick told Malloy he could not 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.
Malloy insisted on delaying mediation and placement studies until the county could pass an ordinance, to “avoid incurring unbudgeted costs.” That is to say, the law would be subservient to the county’s financial concerns. Again, it is clear the county did not have a required budget for mediation and custody/placement reports.
Koschnick responded to Malloy in a June 6, 2016 email.
“If any placement/custody studies are ordered prior to the County Board taking the action that you describe, I believe that it would nonetheless be appropriate for such orders to be complied with in a timely manner rather than being held back as recoupment concerns can’t supersede the statutory requirements,” Koschnick wrote.
Administrators and Malloy appeared to be of the same mind on the subject.
One email from Malloy indicated the former Ozaukee County administrator also was not interested in the county paying for the services.
“Because the County has not budgeted any funds for these studies I have asked Commissioner Boline to hold off referring any matters to the department until the recoupment ordinance has been enacted. My hope is to avoid any unfunded bills that will need to be absorbed by the county,” Connie Mueller, chief deputy of the Ozaukee County Clerk of Courts, wrote in an email dated June 2, 2016.
The same email advised of an order naming Boline, the county court commissioner, as Director of Family Services, an appointment required in state statute, and long overdue.
Voiland responded that he was fine with the appointment, as long as Boline “will do all of the things that the statute requires,” including employing staff to perform mediation and any legal custody and physical placement study services required under the law.
In July 2016, the county board did pass an ordinance designating the County Department of Human Services to “investigate and prepare legal custody and physical placement study reports” when ordered by the Circuit Court.
The ordinance also adopted a “fee schedule,” establishing hourly rates for legal and physical placement studies. It requires an initial deposit, paid for by the parties in the custody case unless the court or court commissioner determines the parties are unable to pay. Malloy, in emails, refers to the measure as a home study fee recoupment ordinance, meaning the county for the first time set specific dollar figures in recouping these family court services fees.
But there isn’t a sliding, income-based scale incorporated in the family court services costs, something that would negate the idea of a “fee schedule,” something that is required by state law.
Boline came up with one hourly rate of $50.99, plus an initial deposit of $2,500. State law requires fees to be “based on the parties’ ability to pay ….” and fees must be “based on services actually provided.” The county must provide family courts services to the parties “even if both parties are unable to pay.”
Also problematic, emails show Malloy involved in the creation of the ordinance, and Voiland consistently advising that judges shouldn’t be participating in the legislative process.
“I haven’t seen a proposed ordinance and would not be inclined to chime in on it, given the possibility of hearing cases involving it. If I was part of drafting it, I might not be able to hear a potential dispute over it,” Voiland wrote in a May 16, 2016 email.
The county may recover “reasonable expenses” for the legal services under state statute, Malloy wrote in one email, by “opting out” of the state-set $300 reimbursement cost.
“If the County passes that ordinance this should be a non issue and we can charge the reasonable cost of each home study,” Malloy wrote. The “reasonable cost” is higher than the state default rate of $300. “This is not a hard concept and should be easy to get done. As long as the County can recover its expenses Tom M was fine with providing this service. There just was nothing budgeted for anything above the $300.00 dollars allowed by statute in the absence of a county approved ordinance.”
“Tom M” refers to Tom Meaux, Ozaukee County’s former long-serving administrator and long-serving Democrat politico.
Failing to follow the law could prove costly for the county.
Documents show the county has had to reimburse several parties for overcharging for legal custody and physical placement studies. In June 2016, Voiland ordered the clerk of courts to reimburse the legal parties, plus interest, any amount beyond the $300 stipulated in state statute. The family court commissioner had charged the parties $1,000.
It also appears the county court system continues to charge for the first mediation session in family court cases. That first session is supposed to be free, although the county charges a deposit.
Ozaukee County’s court administration in recent weeks has been subject of an administrative investigation initiated by Third Judicial District Chief Judge Jennifer Dorow to address recent reports and concerns related to court administration in Ozaukee County, according to a statement issued on behalf of the judge by the Wisconsin Court System.
The chief judge “expects this (investigative) process to identify any necessary next steps to ensure that the people of Ozaukee County have full confidence in the administration of the courts,” the press release states.