Voiland sues chief district judge over court probe

County official’s lawsuit seeks records related to investigation that found no basis for accusations of criminal wrongdoing
By 
BILL SCHANEN IV
Ozaukee Press staff

Apparently unwilling to concede the findings of an investigation that debunked his allegations of criminal wrongdoing in the Ozaukee County court system, Judge Joseph Voiland filed a lawsuit last week against the chief district judge who oversaw the probe.

Voiland, whose seat on the Ozaukee County Circuit Court Branch II will be on the April ballot, filed a petition for a writ of mandamus — a court order — accusing Jennifer Dorow, chief judge of Wisconsin’s third judicial district, of violating the state’s open records law and asking a judge to order her to release records related to the administrative investigation conducted earlier this year by Patrick Fiedler, a former U.S. attorney and retired Dane County circuit judge.

In  addition to a court order, Voiland is suing for punitive damages and legal fees.

The lawsuit, filed in Waukesha County where Dorow also serves as a circuit court judge, is the latest chapter in a more-than-two-year Ozaukee County court system saga the likes of which one legal expert said she had never seen.

“There have been conflicts in other courts, including our own Supreme Court, but never to this extent,” Janine Geske, a former Wisconsin Supreme Court justice and retired distinguished professor at Marquette University Law School, said.  “The implications, unfortunately, are that this (lawsuit) will undoubtedly exacerbate what has been described by multiple sources, including Judge Fiedler in his report, as a very unhealthy situation in the Ozaukee County courts.

“In other words, this is only going to make it worse, and no amount of litigation is going to fix it.”

The records dispute began in July, two weeks after Dorow released the findings of the administrative investigation, when Voiland’s attorney, Waukesha lawyer Brent Nistler, wrote to Director of State Courts Randy Koschnick requesting documents gathered during the investigation.

Voiland also requested records from Dorow, but the issue became bogged down over questions about what records he was seeking and from whom he was requesting them, according to correspondence between Voiland, his lawyer and Dorow.

Those letters and emails, however, suggest that at the heart of the issue is Voiland’s displeasure with the findings of Fiedler’s investigation and Dorow’s decision to release his report to the public.

In a July 3 email accompanying the report, Dorow wrote, “I have reviewed it (Fiedler’s report) and accept its findings.

“I also want you to be aware that I have authorized release of the report to a few reporters who have requested updates while this matter has been pending. And although the report was sent to me with a cover page that says ‘Confidential,’ I consider the report to be a public record at this point.”

Nistler took issue with how the report was released in an Aug. 14 email to Koschnick and Dorow.

“Because the report did not include copies of any supporting documentation, it was impossible for the public to know whether or not its findings and its conclusions were complete or incomplete, accurate or inaccurate, right or wrong,” Nistler wrote.

He continued by suggesting Koschnick and Dorow did not properly verify Fiedler’s conclusions by examining supporting documents.

“The fact that the public has been given every reason to incorrectly believe otherwise has harmed and continues to harm Judge Voiland in his official and individual capacities,” Nistler wrote. 

The administrative investigation ordered by Dorow came on the heels of a 16-month criminal probe that began in May 2016 when Voiland contacted the Wisconsin Department of Justice’s Division of Criminal Investigation and alleged that court records had been falsified to undermine him and accused three Ozaukee County court officials — Judge Paul Malloy, Clerk of Court Mary Lou Mueller and Circuit Court Commissioner Barry Boline — of criminal misconduct.

That investigation was abruptly closed in September 2017 without conclusions or recommendations after Voiland stopped cooperating with agents.

The administrative probe that followed did, however, reach a conclusion.

“I find that there is no basis to believe that anyone has violated Wis. Stat. 946.12 Misconduct in Public Office,” Fiedler wrote in his report, which was released on July 3. “There is also no basis to find that anyone has violated any other criminal statute,” and neither Malloy, Mueller nor Boline attempted to “usurp the authority of Judge Voiland.”

On July 18, in a letter addressed to Koschnick, Nistler requested “all documents gathered by your office and by the investigator incident to this investigation.” A copy of the letter was sent to Dorow.

Koschnick responded via email the same day, writing “I will respond to your request as soon as practical and without delay.”

At some point in the following days, Nistler apparently emailed Dorow regarding the records request. Although Nistler’s email is not included in the exhibits filed with Voiland’s lawsuit, Dorow’s Aug. 1 response is. She notes that Nistler requested records from Koschnick, not her, and Koschnick had indicated he was working on the request.

In the same email, Dorow responded to a “renewed request” from Nistler on Voiland’s behalf to recuse herself from the investigation, which at this point was ongoing to the extent that an audit of payments for family court services, mediation and custody studies was being conducted. Citing a May 23 letter responding to Voiland’s initial request that Dorow recuse herself, she wrote, “In that letter, I unequivocally advised you I would not recuse myself from the administrative investigation. That decision has not changed.”

Voiland apparently questioned whether Dorow had a conflict of interest because in her May 18 letter to Nistler she wrote, “Please be advised that I respectfully disagree with your assertions and decline your client’s request to recuse myself from the administrative investigation.”

By mid-August, Nistler had filed an open records request directly with Dorow asking for “all records in the possession, custody or control of the investigator, District Chief Judge Dorow, the district court administrator and the director of state courts relative to the administrative investigation ....”

Dorow responded by writing, “It would be helpful if you would provide objective and reasonably specific criteria including what records your are requesting. Under the Public Records Law, custodians are not required to try to guess at what records a requester desires, nor are they required to generate a new record.”

In an Oct. 19 letter to Nistler, Dorow wrote that she had yet to receive a “substantive response” to her request for a specific description of the records being sought. She did, however, indicate that she was forwarding emails she sent and received between Sept. 1, 2017, and Feb. 16, 2018, that were organized to respond to a separate request for electronic records containing key words related to the investigation.

Voiland filed his lawsuit against Dorow on Nov. 20.

Dorow declined to comment through State Court Information Officer Tom Sheehan, citing a Wisconsin Supreme Court rule that prohibits judges from speaking about pending cases.

Voiland did not respond to a request for comment.

Court records indicate the case will be assigned to Kenosha County Circuit Court Judge Jason Rossell. Kenosha County is outside of the third judicial district, which is administered by Dorow.

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