David Michael Miller
A former Dane County judge appointed by Gov. Scott Walker likened surrogacy to “human trafficking” and took highly unusual steps that added tens of thousands of dollars in costs for a gay couple seeking to add to their family.
Judge James Troupis’ actions, which included denying parental rights to the couple, were overturned by another Dane County judge and have also been appealed to the state Court of Appeals. And they arguably violated the ethical standards in place for members of the judiciary.
Troupis, who has since left the bench, in August 2015 appointed a Waukesha County law firm that employs an outspoken opponent of same-sex marriage to assist in the case. That resulted in hefty additional legal fees for Jay Timmons and Rick Olson as they attempted to become the legal parents to their infant son, born to a surrogate in Wisconsin. And the couple says the judge wreaked emotional havoc on their family by keeping the child’s legal status in limbo for 10 months.
In early July, Dane County Judge Peter Anderson vacated Troupis’ order, giving Timmons and Olson parental rights to Jacob, who will be a year old in August. Troupis had already terminated the parental rights of the surrogate, who never contested the contract she had with Timmons and Olson.
Anderson raised serious concerns about his former colleague’s conduct in the case, calling it “harsh,” “weird” and “faulty,” according to an online account by Timmons of his family’s ordeal. Anderson said Troupis’ decision also contained a “manifest error” of the law, Timmons wrote.
Kevin St. John, one of the attorneys for the couple, did not return a call seeking comment on the appeal or whether his clients intend to file a complaint against Troupis with the Wisconsin Judicial Commission. The code of judicial conduct prohibits judges from, among other things, performing their duties with bias or prejudice.
“A judge may not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and may not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so.”
Timmons and Olson live in McLean, Va., a high-end suburb of Washington, D.C. Timmons is president and CEO of the National Association of Manufacturers, which, according to his bio, is the “largest manufacturing association in the United States representing small and large manufacturers in every industrial sector.” Timmons also formerly worked for several Republican lawmakers.
The couple, who also have two young daughters, received a gift of two frozen embryos from friends about two years ago. After spending about a year researching legal issues, they sought out a surrogate in Wisconsin, believing state law here clearly allowed a same-gender couple to be recognized as parents of a child born through surrogacy. According to court documents, the surrogate was paid $35,000.
About two months before the expected birth, on June 25, 2015, reserve judge Sarah O’Brien held a hearing on the couple’s petition for parental rights. O’Brien’s interim order awarding them parental rights was expected to be finalized upon Jacob’s birth.
In a ruling, former Dane County Judge James Troupis asked if surrogacy arrangements violate “human trafficking laws.”
But when Troupis inherited the case, he had different ideas. He held a hearing July 30 and took the rare move of appointing a guardian ad litem to represent the interests of the child, according to documents obtained through the Court of Appeals. Even more unusual, the judge went outside of Dane County to pick Mark Knutson, an attorney in Waukesha County, who is a member of the Christian Legal Society.
Knutson, in turn, assigned work on the case to associate Erik Krueger, a graduate of Liberty University Law School, a private, evangelical Christian university in Lynchburg, Va. The school’s mission, according to its website, is to “equip future leaders in law with a superior legal education in fidelity to the Christian faith expressed through the Holy Scriptures.”
Krueger’s hostility to same-sex marriage is no secret. In a 2013 article for the Liberty University Law Review, “God Versus Government: Understanding State Authority in the Context of the Same-Sex Marriage Movement,” Krueger argued that the state should reject gay marriage and only sanction “true marriage.”
“First, there is no theological basis for same-sex marriage,” he argued. “True marriage is the antithesis of same-sex marriage. To authorize same-sex marriage is anathema to Christians and begs an unprecedented cultural backlash. It makes a mockery of marriage.”
By the time Knutson finished his work for Troupis, he had racked up $90,000 in fees. In an appeal of Troupis’ decision to the state Appeals Court, filed concurrent with a reconsideration request at the circuit court level, St. John asked the judges to determine whether these fees were excessive.
“In an uncontested petition involving parental rights to a child, a guardian ad litem typically charges between $300 and $1,500 for his or her services,” wrote St. John, a former deputy attorney general under J.B. Van Hollen. “Did the circuit court err in approving $90,000 in fees over Petitioners’ objection that the fees charged were unreasonable?”
St. John also asked whether the guardian ad litem should have been disqualified based on bias because he “assigned work on the matter to an associate attorney whose professional writings are openly hostile to same-sex families and those who implement laws relating to same-sex families and where parties seeking a determination of parental rights are a same-sex married couple?”
Knutson said he could not comment on the case. Troupis did not return a phone call. But Troupis defended Knutson in his ruling, calling the work of the guardian ad litem and his office “nothing less than exceptional.”
As a Madison attorney, Troupis made headlines in 2011 for representing Supreme Court Justice David Prosser in the 2011 recount and later for helping Republican lawmakers redraw voter boundaries to benefit the GOP. Walker appointed him to a Dane County Court seat in May 2015; his term ran through July 2016 but he stepped down in May. Soon thereafter it was revealed he was applying — again — for a seat on the Wisconsin Supreme Court. He came up empty a second time.
Soon after Jacob was born, Timmons and Olson attempted to dismiss the guardian ad litem, but Troupis denied the motion. The couple were awarded temporary placement of Jacob, but would spend the next 10 months traveling between Virginia and Wisconsin to attend depositions and court hearings.
While the laws on surrogacy in Wisconsin are far from defined, a 2013 Wisconsin Supreme Court decision did offer some clarity. In Rosecky v. Schissel, the court said that surrogacy agreements, even when a surrogate uses her own egg, are enforceable as long as they are in the best interests of the child.
But Troupis argued in his March 25, 2015, written decision that he lacked statutory authority to make Timmons and Olson the legal parents of Jacob. He focused on their lack of a genetic tie to the child. “[T]he child here was a gift from another couple, made possible by payment to an agency and to a mother. Can any such agreement be made without violating human trafficking laws?”
“While this couple is extraordinary,” Troupis added, “how can a decision here to give them parental rights without procedurally approved predicates not lead to horrifying abuse later when the next child is not so lucky in those who are the purchasers?”
Troupis did terminate the surrogate’s parental rights. But he reaffirmed the temporary placement of Jacob, denying the request from Timmons and Olson to be named the child’s legal parents and for Jacob’s birth certificate to be amended.
Troupis also called out the lawyers involved in the case, which include Lynn Bodi of the Madison-based Law Center for Children and Families and Karl Kliminski of Boushea, Segall and Kliminski, for engaging in “forum shopping essential to ‘selling’ Dane County Wisconsin for commercial surrogacy.” And he warned that attorneys on future surrogacy cases have an “ethical obligation” to present his ruling when seeking parental rights for their clients.
In recounting his family’s legal fight for Jacob, Jay Timmons wrote that Troupis caused his family “unfathomable emotional duress.”
“Rick and I — together for 25 years and married for eight — learned the hard way that two fathers hoping to grow their family still can be subjected to unimaginable cruelty seemingly motivated by bigotry and prejudice.”
The couple, according to Timmons, took out second and third mortgages to pay for the “legal melee” that erupted once Troupis took over the case. “Objections and motions. Deadlines and delays. A stream of lawyers — 11 in all,” he wrote. The psychological and physical toll was also high. “Endless, unnerving, sleepless nights. Continual nausea so acute we could barely eat. Rick left a stable 16-year job to focus full-time on managing legal issues.”
The couple ultimately prevailed, but Timmons said they are forever changed by the experience. “The heartache and pain induced by officers of the court who deliberately distorted facts and abused their authority to deny us equal treatment under the law will continue to haunt us.”
