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In late September 1997, my longtime boyfriend Rodney Hebert's stepmother gave him an old passbook to a savings account bearing Rodney's name. She had found the passbook while cleaning out her house. Someone had opened the account for Rodney at the M & I Bank of Watertown in his hometown of Watertown, Wisconsin several months after his birth in August 1968. The last posting on the account, from March 1982, indicated a balance of almost two thousand, four hundred dollars. Naturally, Rodney wished to find out how he could get his hands on this money. Since I am more comfortable than Rod with using the telephone due to my customer service background, I offered to call the bank for him.
I learned that the bank had merged with another one sometime after 1982, and had changed its name to M & I Bank South Central. I contacted the branch manager where the account originated, and he informed me that Rod would have to provide identification by sending the bank a notarized letter along with copies of the passbook and his birth certificate.
This last requirement presented a minor difficulty. Rodney had no birth certificate to match his name on the passbook. His biological parents had named him Rodney Todd Slagle. However, Rod's mother died when he was five years old, and Rod's father, Glen Slagle, remarried shortly after his first wife's death. Glen and Rod moved to Kingston, Massachusetts to live with Glen's new wife and her parents. Rod's reconstituted family was quite dysfunctional. The Massachusetts Department of Social Services investigated the family, and placed Rod into several foster homes. This state intervention culminated in Rod's adoption by the Hebert family of New Bedford, Massachusetts in April 1982, when Rod was almost fourteen. Rod took the name Rodney Michael Hebert. His adoptive mother, motivated by family pride, changed Rod's birth certificate to reflect his new name and his adoptive parents' names.
We surmounted this obstacle with relative ease. Rod just signed his name as Slagle, and listed his return address as "care of Carol Johnson" so that he could receive his original birth certificate from the Jefferson County, Wisconsin Register of Deeds at our address. The bank responded to Rod's notarized letter and proof of identity with a letter informing us that it had closed the account in September, 1986 pursuant to an August 26, 1986 order by Probate Court Commissioner Shirley Herried of Jefferson County, Wisconsin. The bank had issued Glen Slagle a money order for three thousand dollars, the balance of the account. Both Glen and Shirley Slagle had endorsed the money order. Shirley's countersignature indicated to us that Shirley herself either cashed the money order or deposited it into her own account.
These developments dismayed us, since Glen had voluntarily terminated all parental rights to his son before Rod's adoption in 1982. We surmised that Glen had lied to the Probate Court about his guardianship of Rodney. We did not wish to implicate Shirley Slagle, even though she had endorsed the money order. Rod has been back in touch with his stepmother since 1991. We know that the three children that Shirley bore Glen have stressed her resources considerably over the years. Glen has been derelict in his fatherly duties to these offspring, too. Shirley has not received any child support from Glen since she divorced him in 1987. We had heard that Glen was living in Oregon, but we could not find his address, so we had faint hope of recovering any money from him. We thought that the court order properly authorized the bank to release the money, so we did not believe we had any possibility of restitution from the bank. Further research would soon cause us to question this last assumption.
At first, we thought the 1986 court order sealed the matter. But when I related Rod's tale of lost potential cash to my sympathetic Mom, she questioned the court order date. Realizing that Rod had turned eighteen just before that date, she mentioned that if the age of legal majority in Wisconsin is eighteen, perhaps the bank should have checked Rod's status as a minor before releasing his savings to Glen. I called the Wisconsin State Attorney General's office, and learned that eighteen was the age of majority in the state. This realization launched me headlong into an ongoing research project.
The idea to use this project for a Writing 125 assignment on "real life law" also struck me as I brainstormed with my Mom. I intended to pursue the matter anyway, so why not get college credit for it? I emailed my proposal to Professor Viti. Since I knew that she is an attorney in a practice specializing in child custody law, I asked her if she would advise me on how best to proceed. She responded enthusiastically, and offered to supply guidance and to represent me pro bono if we could construct a case against the bank or probate court. She agreed that going after Glen might not be worth the effort, even if we could locate him in Oregon. We would have to sue him in Oregon if he lacked minimum contacts with Wisconsin. Even if he retained financial or property ties to Wisconsin, we might have to sue him in Jefferson County, Wisconsin.
Instead, Professor Viti advised me to find out if Glen had established the account as a trust for Rod, and to obtain a copy of the court order referenced in the bank's letter. If Rod's savings had been held in trust by his father, Glen may have retained legal rights to the money after Rod reached his majority. I doubted that Rod's rural relatives had even heard of this financial arrangement, but I contacted the bank and spoke with the Controller, Peter Cleven, who had handled our initial inquiry. He advised me that his bank had never administered trusts. This bolstered my belief that only Rodney should have had access to his account. Cleven informed me that the bank had no record of Rodney's account, and no copy of the court order, so he could not tell me who had opened the account, since the bank discarded documents after seven years. In compliance with a statute regulating records related to legal actions, the bank kept only a copy of the endorsed money order, with a note attached about the court action. Cleven directed me to the Probate Court.
I followed his instructions, since Viti had also told me to contact the court to unearth any pleadings associated with the case. I learned that Probate Court Commissioner Herried had retired. The current Register of Probate, Jane Stetzer, had no idea why Herried had signed the order to release Rod's savings. Stetzer told me that Jefferson County does not conduct hearings on probate matters; they are addressed in an office setting. This supported my theory that Glen had corresponded with the court from Massachusetts. Stetzer suggested that in addition to the court order, I might need the correspondence associated with Rod's proceeding. She offered to send me copies of everything in Rod's file.
I soon received a packet from the court that included twenty-two pages of correspondence. All of this paperwork dealt with Rod's passbook account. The account had belonged to the estate of Rod's mother. Glen had received a percentage of the estate under spousal inheritance laws. The letters revealed that Rod's father had retained an attorney in Kingston, Massachusetts , who aggressively sought control over Rod's savings from 1975 to 1976. This shocked Rod and me, because Glen lacked the finances to hire an attorney. But Shirley's family was well-connected within their community. We conjectured that Shirley's father or brother may have secured pro bono assistance for Glen without Shirley's knowledge. Shirley may have just signed that money order, unaware of the money's source. Rod and I can imagine that she failed to connect a 1986 windfall to the passbook she found, but not that she forgot an extensive legal effort associated with it. Shirley's brother's reluctance to discuss the passbook with Rod shortly after its discovery reinforced this impression.
Glen's lawyer repeatedly attempted to procure the release of Rod's funds to Glen. Again and again, County Judge Charles Kading denied his requests, on the grounds that the bank should hold the savings for Rod until he was of legal age. Kading was not convinced by Glen's claims that he needed the money to support Rodney. Kading declared that Glen should pay these expenses out of his wages because these were normal costs of raising a child. Each refusal by Kading generated another petition for reimbursement of childcare expenses, differently worded. In one, the Slagles claimed that they intended to enroll Rod in private school if they obtained his savings. This assertion was patently false. Even if the Slagles had valued education, the sixteen hundred dollars then in the account would not have paid for even a year of private school in 1976.
Rod's file contains only two documents dated after this. Jefferson County Probate Court generated both, which are dated August 26, 1986. As the Bank's letter to us established, the court order to release Rod's savings also bore this date. Glen must have presented one of the two forms dated August 26, 1986 to the bank in order to receive Rod's funds. The first form is a "Receipt and Release of Guardian by Ward". In it, the ward (Rod) attested that his guardian (Glen) gave Rod three thousand dollars, the amount then in the savings account. The court discharged Glen from guardianship of Rod because he satisfied his financial obligation to his ward. In reality, of course, Glen never paid Rod one cent. A glaring omission here is the conspicuous absence of Rod's signature on the form. No one could mistake Glen's legible signature for Rodney's. Probate Commissioner Shirley Herried nevertheless stamped and signed the document.
However, we do not think that Glen used this as the court order. Glen probably used the second form to get Rod's money. It includes Rod's name as a minor and Glen's as his guardian at the top of the sheet. A handwritten note beneath this states "..would like to withdraw all money in account # 72-2652. The note specifies the amount in the account, but not who is applying to withdraw it. We assume that either Commissioner Herried or Glen wrote this note. Commissioner Herried stamped, but did not sign this document. Glen's signature is present, but Rodney's again is missing. The center of the form reads "Items Disbursed for Said Ward". The requirement that the minor has come of age is checked off on the second page of the document. We believe that this form was intended to authorize the Bank to release Rod's inheritance to the ward (Rod), rather than to the guardian (Glen).
I tried to get Probate Register Stetzer to confirm our assumptions. She thought that we were correct, but her office had discontinued using these two forms. She looked around in vain for old samples when I spoke with her. She would not retrieve the original documents in question from Rod's file in the court basement. Even so, I got the impression that she actually felt fairly confident of her assessment. Furthermore, Stetzer made no bones about her opinion that Commissioner Herried never should have authorized those forms.
Rod's claim against the Bank shows promise, since it carelessly accepted a form that Glen used for the wrong purpose. But the fact that Commissioner Herried signed this form in error weakens Rod's chance of collecting restitution from the bank. Professor Viti urged me to find out if we can sue the Probate Court. This alternative route might compensate for the potential failure of the bank claim. There is substantial support for a case against the court. In addition to Commissioner Herried's authorization mistakes, the court violated Rod's due process right to notice of a proceeding involving his property. The Probate Court should have published public notices in Southeastern Massachusetts newspapers to notify Rod of the court action. Rod's file included no record of any such publication.
Since we wanted to sue the court, a subdivision of the state, we first needed to know if sovereign immunity would prevent this. I called the State Attorney General's office to inquire about sovereign immunity in Wisconsin. The woman there was unsure if counties fell under state or municipal jurisdiction. She referred me to Jefferson County Corporation Counsel Phillip Ristow, who said that state immunity laws governed Wisconsin counties. Ristow cleverly avoided giving me specific information regarding immunity. He clearly told me that he occupied the opposite side of the fence from me on this matter, but he treated me cordially. He said that sure, we could sue the county, but that did not mean we would win. He conceded that if I was asking him what sort of defenses he could offer, he could think of several concerning statutes of limitation. He cited one that set a 120-day limit, and hedged his answer when I asked if this started at the time of discovery or occurrence. During our discussions of the case, my Mom had commented that SOLs might pose a threat to our success. Professor Viti, too, thought that limitations usually were two years from the discovery of the problem, but warned me that the county might have a valid SOL defense.
I have found no clear-cut answers to the other legal issues in this case. My research has produced no hard evidence of culpability on the part of either the bank or the court for releasing Rod's inheritance to his father in error. Unraveling this mystery is a continuing process, as each answer spurs another question. I have placed approximately twenty calls to bank personnel and various state and county agencies or arms of government in Wisconsin. A few inquiries yielded only a referral, but most provided me with volumes of new information. Every single person I spoke with wanted to help me get to the bottom of this matter. Phillip Ristow told me that was because wrongdoing concerned everyone in government, even those who felt defensive.
I listened to the different perspectives of the parties during my conversations. Although everyone I spoke with was friendly and accommodating, each one gently let me know that his or her primary responsibility was to protect the interests of his or her own institution. (Probate Register Stetzer was a notable exception. She freely admitted that her predecessor had erred in signing those documents. She surely realized that she personally would escape culpability in a suit against her county. Still, I appreciated her candor.) I sought to manipulate these motivations to our advantage. I employed the tactic of first calling bank officials, and then county employees, in order to pit them against each other. Each was happy to tell me how the other might be at fault!. This strategy worked at producing valuable leads in the case.
A wave of inspiration hit me after my conversation with Corporation Counsel Ristow. Neither the Registrar of Probate nor the Probate Court's legal advisor (Ristow) can tell me exactly how the court originally used these two forms. Ristow suspects that one document merely released Glen from his guardianship of his ward (Rod), while the other authorized Rod to withdraw his savings. If court officials cannot identify these forms, surely the bank should have questioned the documents, and especially the absence of Rod's signature on them, and held on to Rod's savings. When Rod demands restitution from the bank, Controller Cleven will rely on the same sources of information which I used. Ultimately, he will deal with Corporation Counsel Ristow. If Ristow gives Cleven the same responses he gave me, Cleven may feel pressured enough to honor Rod's claim.
In order to advance Rod's claim, Professor Viti and I plan to send a demand letter to M & I Bank South Central. In addition to this measure, Professor Viti advised that we consider several avenues of legal action. If Cleven at the Bank finds a reason to deny Rod's demand, we will file suit against Jefferson County, Wisconsin, naming Probate Commissioner Herried as a co-defendant. We may also pursue Glen Slagle, if we can find him and sue him in Massachusetts. Ristow informed me that we most likely could sue Glen in Massachusetts, since both Glen and Rod resided in this state when the original case arose. None of these avenues will guarantee a favorable outcome, but Ristow's information sheds an optimistic light on Rod's claim.
Quite apart from any prospect of remuneration, we have gained invaluable insight into Rod's family background in the process of reconstructing old events in this case. For instance, we have learned that Rod's mother's maiden name was Zastrow. Rod previously had claimed French heritage from his mother, since all of the first names on his maternal side were French. But Zastrow sounds like a Polish or Czech name. In addition, we had heard that Rod's mother was substantially older than his father, but we did not know if this hearsay was accurate. We now know that his Mom was thirty-eight when he was born, while his father was only twenty-four!
From the standpoint of Rod's family situation, one striking aspect of the case is that the many pages of correspondence from Rod's father's attorney show utterly no concern for Rod's best interests. Glen's lawyer's approach to the case may have been devious, but professional ethics bind all lawyers to zealously advocate for their clients. However, Glen's first obligation should have been to promote Rodney's welfare. Glen behaved negligently by sacrificing his son's future security to his own financial gain. His unconscionable motives outraged Rod. At the same time, he acknowledged that his father's additional children and economic circumstances may have compromised Glen's integrity. However, Rodney's biological mother opened this account for his future upon his birth. It was part of her estate when she died. Glen supported Rod only intermittently during the period of the lawsuit. The Commonwealth of Massachusetts had custody of him for the majority of this time. The Heberts had adopted Rod in 1982, but Glen Slagle still claimed legal guardianship of him in August 1986. So Glen intentionally defrauded his firstborn son.
Rod's case certainly points to the need for the recognition of a state interest in protecting the best interests of children. Judge Kading repeatedly tried to protect the best interests of the child. He is the only individual in this segment of Rod's history who acted on Rod's behalf. Therefore I retain my faith in our legal system's capacity to protect the rights of minors. Rod's right to due process was violated as the result of Probate Commissioner Herried's negligence, not due to any fundamental flaw in Wisconsin's judicial system. This legal system is fallible due to its reliance on human beings, who can be inconsistent, but I conclude that the system is still basically sound.
But among all these self-interested parties and institutions, I repeatedly felt the lack of any consideration for Rodney's perspective. Judge Kading alone unflinchingly upheld his duty to protect the rights of this minor. Due in large part to state intervention, Rod survived to adulthood. I suppose that I (with the help of Professor Viti) now represent Rodney's best interests in this case. Regardless of the ultimate disposition of this case, I will try to adhere to this standard in all aspects of my relationship with Rodney.