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Municipal judge won't step down from bench



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Peterson (click for larger version)
December 17, 2013 | 04:29 PM
WALWORTH — Municipal Judge John "Jay" Peterson won't be stepping down from the bench anytime soon, and it's likely the village will have to comply with his recent orders changing the way court is held in the village.

"If it just boils down to having people write down on a piece of paper their reason for not being able to pay, then I'd be willing to do that even though I disagree with the principle behind it," he said in a phone interview Dec. 12. "The principle behind it is that (defendants are) lying to me, and they need to have something written."

On Dec. 9, the board unanimously requested Peterson resign, but the issue is complicated. Peterson has requested an attorney handle pretrial hearings, the court clerk office be separated from the police department and a new clerk be hired to replace Clerk Ellen Reddy, who is resigning.

The village board tabled the hiring of a new court clerk and deferred any decisions on court changes at the Dec. 9 meeting.

Peterson has already started the process of removing the court clerk office from the police department.

Trustee Kent Johnson said it was in the best interest of the village for the municipal judge to be in agreement with the board about fine collection policies.

Last month, Village President David Rasmussen said the community's court revenue is declining because Peterson frequently finds defendants indigent and unable to pay.

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Last week, Peterson said defendants were not under oath when discussing their ability to pay.

Peterson said telling a judge of indigency status is embarrassing and not something people say just to get out of paying a fine.

"For the board to take the position that I need to resign over how I handle 13 percent of the uncollected fines in the village baffles me," Peterson said. "I can only assume that they agree with how I handle the 86 percent of the uncollected fines."

Collecting fines is only part of the board's concern with Peterson as judge.

Peterson sent a judicial order to the village mandating that all pretrial conferences with defendants are done with an attorney.

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"I know that municipal judges get to run their courts the way that they want," Peterson said about his orders. "When it comes to having an attorney there, the (state) Supreme Court ruled that nobody can negotiate other than an attorney."

Peterson said the law regarding pretrial negotiations isn't settled in the state.

James Duquette, an attorney with the Seymour, Kremer, Koch, Lochowicz and Duquette law firm in Elkhorn, is the village's prosecutor.

"I can tell you that it's our job to serve our client, the village, but we also have to do what the judge orders," Duquette said during a phone interview Dec. 13. "He's requiring the attorney be present for the pretrial conference. He's a judge. I'm an attorney in his court."

Duquette said he will continue to work for the village within the confines of the court structure Peterson has in place.

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"How I conduct the pretrial is really up to me, when it comes to the deals I will or will not offer and outcomes I'm seeking," Duquette said. "We're going to work out a system (with the changes) that probably isn't perfect right away. We'd like it to be efficient but effective."

Duquette declined to comment on the fine collection status.

Attorney's opinion

Steve Koch, the village attorney and member of the same law firm as Duquette, presented an opinion to the village board regarding the changes Peterson wanted.

"You noticed that they handed around the legal opinion," Peterson said of the Dec. 9 meeting. "It says that the (letter to the editor dated Nov. 21) I had written for the paper was spot on right. They were looking for anything I said that wasn't true or legally accurate."

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Koch's opinion states that Peterson's interpretation of state statutes regarding the court are correct.

"One area that is not clear from the (letter to the editor) is what remedies the municipality has if an individual is not indigent but does not pay their fines," Koch states. "Wisconsin statutes (list) four remedies for nonpayment of fine: suspension of the person's operating privileges, imprisonment until the fine is paid off ... assignment of a percentage (of) the defendants wages to the municipality and to order for community service."

Koch said each night a defendant spends in jail reduces the fine by $50. Regarding the change in pretrial hearings, Koch said if police are allowed to negotiate for the village, they can handle pretrials.

"A representative of the village of Walworth, who has the power to negotiate on behalf of the village of Walworth, may be sufficient for this purpose as long as they are not providing any legal advice to the defendant."

Koch said it is safer to have attorneys handle the pretrials, though.

"Until Wisconsin issues a court ruling or ethics opinion on this matter, it is a safer option to have an attorney handle the pretrial conferences."

Scott Letteney, town of Geneva municipal judge and president of the Wisconsin Municipal Judges Association, said he's had experience with small communities not respecting the separation of powers in the branches of government. He said his comments were not on behalf of the judges association or as an official position for the town of Geneva.

"I've been a municipal judge for 14 years," he wrote in an email. "I can tell you from experience and anecdotal evidence that in many municipalities, especially smaller municipalities in Wisconsin, the governing body has difficulty with the basic concept that the municipal judge, as an elected official, is not subordinate to the village board."

Letteney called this a "basic concept of American government."

"The legislative, executive and judicial branches are equal to each other," he said. "The law makes that clear ... it is not only wrong for a municipal governing body to attempt to direct the way in which (a) municipal judge carries out her or his authority, it would be an abdication of a municipal judge's duty to bow to such direction."

Letteney said Peterson's order for more separation from the police department should be carried out immediately.

"In theory, a judge's orders should be carried out immediately or within the time defined by the judge," he said. "As to the issue of the facilities for the court and the court clerk, the law is clear that the municipality must provide facilities that are separate from the police ... The only real recourse would be for the judge to sue the municipality in the name of the municipal court. This is not a realistic course to take."

The village board's decision to table the hiring of a replacement court clerk is also prohibited under state law, Letteney said.

"The municipal board has absolutely no input in who the municipal judge hires as clerk," he said. "The municipal board must authorize at least one court clerk position and sets the salary ... according to the statute, 'the hiring, termination, hours of employment and work responsibilities of the court personnel, when working hours assigned to the court, shall be under the judge's authority."

Area courts

Fontana Police Chief Steve Olson said Fontana's court doesn't have the same issues as Walworth.

Fontana's Court Clerk Jan Armonda said the village has $13,946 in uncollected fines out on warrants and $2,298 in uncollected fines with suspended licenses. In 2012, the Fontana court collected $108,262 from 922 citations.

Those amounts include some fines that are 10 years old.

Tickets are not that big of a money maker for the village, either, Olson said.

From a typical speeding ticket of about $115, only around $65 goes back to the village's general fund, he said. The remaining balance is split between different categories at the county and state level, like the crime lab.

According to the League of Wisconsin Municipalities, municipal courts have limited powers and aren't like other high level courts.

"If the municipality proves the violation by the required level of evidence, there is no legal authority for a municipal court to amend the charge and convict a defendant of a lesser violation or dismiss the case even if the defendant complies with conditions that might be imposed by the court," the league's Guide to Wisconsin City and Village Government states. The Williams Bay Municipal Court gave unaudited numbers for 2013. There is $76,305 due year-to-date, and the village has recouped $47,664.

Court Clerk Diane Sherin said some of the fines have been dismissed, and the amounts will change with a full audit after the year ends.

If the judge resigns

If Peterson resigns, the village has to follow statutory limits on replacing him.

The vacancy can be filled by temporary appointment until the next spring election date, when a replacement will be elected to serve the remainder of the term.

Because this hypothetical resignation would be between Dec. 1 and the next upcoming spring election, the temporary appointment would remain in the position until the spring election in 2015.

A special election may also be held on the regular November election date.

If the court is dissolved

After Peterson's term ends, the village board can vote to dissolve the court, though there will still be police patrols and tickets given in Walworth.

Municipal violation citations will be heard at circuit court, and the fines associated with those tickets will increase, according to information from the Wisconsin Court System.

"An individual who is ticketed for a municipal ordinance violation in a community that does not have a municipal court will have to pay about $50 more because the case will be heard in circuit court," the court system website states. "The forfeiture amount that the municipality receives is the same regardless of which level of court hears the violation. When there is no municipal court, the municipality pays a $5 fee per citation to the circuit court."

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