County expected to settle court case for $215,000

Some supervisors blame Voiland for handling of attorney fees in guardianship case that dates to 2015
By 
DAN BENSON
Ozaukee Press staff

An Ozaukee County Committee recommended this week that the county pay $215,000 to settle a long-running guardianship case, an expense for which outgoing  Circuit Court Judge Joseph Voiland is to blame, some supervisors say.   

“Judge Voiland was elected to represent Ozaukee County constituents but his ruling cost Ozaukee County taxpayers quite a sum of money,” said County Supr. Tom Winker, a member of the Public Safety Committee, which oversees justice system operations. “But we will be able to move on beginning Aug. 1” when Voiland’s tumultuous term on the bench comes to an end.

The county Executive Committee voted unanimously on Monday to recommend the settlement after meeting in closed session for about an hour. The full County Board was slated to meet in closed session Wednesday morning and afterward vote in open session on whether to accept the settlement.

The settlement stems from a battle between Ozaukee County and the son of an elderly woman over who should be her guardian. 

County Corporation Counsel Rhonda Gordon, who called the matter “a classic case of elder abuse,”  filed appeals this spring over mounting attorney fees and whether the case should be transferred to another judge.

The settlement would “release the county from all future claims” in the case and put an end to the appeals.

According to an Appeals Court ruling last fall, an elderly woman in the early stages of dementia had assigned power of attorney to her son, taking that away from her daughter with whom court filings say the son had been at odds with for years. In 2015, the county argued the woman was not competent to make that decision, had possibly been coerced by her son to do so and sought to appoint a new guardian.

A temporary restraining order against the son was also filed by the county on behalf of the mother. 

In that petition, several caregivers — including staff at the Lasata Care Center, the  Cedarburg Senior Center, the county Aging and Disability Resource Center, the woman’s private caregiver and the daughter — said they believed the woman’s son had poisoned her mind against the daughter and her family and that the son convinced her that the daughter had been stealing money from her, according to the petition.

Voiland rejected the restraining order petition, saying it was never established that the mother was at risk.

He also ruled against the county in the guardianship case, saying it did not establish that the woman was incompetent when she signed the power of attorney over to her son.

The county appealed and the Appeals Court supported Voiland.

Besides the merits of the case, the county  argued the attorney fees approved by Voiland were excessive and that a lower rate should be applied, namely the rate paid to public defenders.

But Voiland ruled the law prescribes that the rate, if private attorneys are used, should be the rate “customarily charged in the locality.”

At the public defender rate, Gordon said the attorney fees for the case in Circuit Court would have totaled about $480.

The Appeals Court supported Voiland’s ruling, however, saying the county did not contest the fees until after the fact and therefore was liable to pay them.

After the Appeals Court ruling, supervisors authorized Gordon to appeal the case to the state Supreme Court, saying Voiland’s decision set a dangerous precedent.

The high court refused to take the case.

Supr. Pat Marchese, former chairman of the Public Safety Committee and who voted to appeal the case to the Supreme Court, said Voiland’s ruling sets a “dangerous precedent.”

“It establishes a very troubling precedent because it says the county has to pay for private legal fees in a case where they are following their statutory responsibility,” Marchese said. “In times of tight budgets, it’s very difficult for elected officials to step up and pay that. There is a financial cost to this thing.”

Marchese also supported Gordon’s handling of the case.

“I believe Rhonda’s analysis of the case and cause for filing the brief to the Supreme Court was excellent and very well thought out and well-founded. That’s why I voted for that,” he said.

The current dispute is the latest between Voiland and the county.

In the 2013 election, Voiland upset veteran Judge Tom Wolfgram with a campaign that focused on Wolfgram’s decision to sign a Gov. Scott Walker recall petition.

In 2016, Voiland sparked a 16-month criminal investigation of the Ozaukee County Court System with accusations that fellow court officials had committed criminal misconduct in office in an effort to undermine him. That investigation ended abruptly without reaching any conclusions, but an administrative probe conducted by the state court system that followed found no basis for those accusations.

Last December, Voiland announced he would not seek a second term in office. A Dec. 26 statement attributed to his campaign stated that Voiland, a disabled Gulf War veteran, would be taking medical leave to complete treatment at the Milwaukee VA Medical Center.

Since January, Voiland has seldom been in court, with several reserve judges taking his cases.

Yet Voiland has apparently paid close attention to the guardianship case, including filing several orders in recent weeks, according to Appeals Court records.

Meanwhile, costs to the county will continue to climb beyond the settlement amount.

“A final tally will not be available for awhile yet.” Gordon said.

Those costs will be paid from the 2019 budget, County Administrator Jason Dzwinel said.

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