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  • WisBar News
    August
    15
    2009

    Child support case workers improperly seeking court orders, court of appeals holds

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    Sept.15, 2009 – Child support case workers in Marinette County and Door County have engaged in the unauthorized practice of law by filing their own affidavits in support of motions they draft for commitment orders, the Wisconsin Court of Appeals found.

    Child support case workers improperly seeking court orders, court of appeals holds

    By Alex De Grand, Legal Writer, State Bar of Wisconsin

    Sept.15, 2009 – Child support case specialists have been improperly filing affidavits in support of their own motions for commitment orders, the Wisconsin Court of Appeals held today in   Teasdale v. Marinette County Child Support Agency, 2008AP2827.

    Although this case involved the standard practice of Marinette County, the court of appeals noted that non-attorney filings are also made in Door County.

    Child support order

    After he acknowledged his failure to pay child support, the circuit court agreed not to jail Clay Teasdale upon condition that he make $500 per month child support payments, plus $50 monthly toward arrears, effective upon employment.

    A child support case specialist filed an affidavit approximately eight months later, indicating that Teasdale failed to comply with these conditions. The day after she filed, the circuit court signed the commitment order.

    Teasdale was not arrested, but he claimed to have learned of the order “through local gossip.” Teasdale moved to strike the case worker’s affidavit and to vacate the commitment order.

    At a hearing on the motion, the case specialist testified it was the Marinette County Child Support Agency’s practice that the case specialist would prepare the affidavit in support of a commitment order and draft the order, presenting both directly to the judge. The case worker confirmed she actually applied to the presiding judge to issue a warrant and commitment order and did not provide notice to any party.

    The judge, who was from Door County but presiding in this action, noted “this is the same exact procedure” as in Door County, where “it’s walked across the hallway … to me.” The court agreed with the child support agency that Teasdale had failed to make support payments and reaffirmed the commitment order. Teasdale appealed.

    Improper procedure

    In an opinion authored by Presiding Judge Michael Hoover, the court of appeals agreed that the record contained no evidence of Teasdale’s child support payments. But the circuit court should have struck the case worker’s affidavit and proposed order from the record, pursuant to Wis. Stat. § 802.05(1). Without those documents, the court of appeals reasoned, the circuit court had no grounds to conclude Teasdale failed to comply with the previous court order. Accordingly, the court of appeals instructed the circuit court to vacate the warrant and commitment order.

    The court referred to Wis. Stat. § 802.01 (1), which requires an attorney’s signature on any motion filed for a hearing, except for those submitted by self-represented parties. “An attorney’s signature serves as a certification to the court that the motion is properly supported by the facts and law and not being presented for any improper purpose,” the court wrote.

    Further, the court noted that the case worker filed her documents “directly and exclusively to the court,” rather than with the clerk of the circuit court, as required by Wis. Stat. § 801.16(1). Likewise, the court commented that an attorney would have known to have served notice on each of the parties, rather than initiate ex parte communications as in this case.

    In a footnote, the court of appeals stated that the case specialist’s actions constituted the unauthorized practice of law under Wis. Stat. § 757.30. Also in a footnote, the court of appeals remarked that not only had the agency failed to provide Teasdale with notice, but it refused to provide him with copies of the filed documents until he paid for them in advance. “This resulted in an additional three-week delay in the notice of allegations,” the court wrote.

    The court of appeals criticized the circuit court for failing to reject the ex parte communications under SCR 60.04 (1)(g). The court of appeals also faulted the circuit court for granting the commitment order the day after the agency sought it, rather than hold a hearing on a minimum of five day’s notice under Wis. Stat. § 801.15(4). “A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions,” the court wrote, citing State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833 (1991).

    “Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued,” the court said. “In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned.”

    The court of appeals qualified its criticism of the lower court, commenting in a footnote that it did "not mean to suggest there was any intentional misconduct by the circuit court in this case."

    "The specific issue addressed herein has not previously been addressed," the court of appeals wrote. "We recognize certain procedures may sometimes persist over a significant period of time without question. Indeed, in this case, it appears the improper procedure persists in multiple counties."