"Law 101 and Then Some!"

(By a NASGA member)

It’s not very often that we hear of victims of guardianship and conservatorship escaping from their sentences, but we’ve just seen the Chism victory in Michigan – he came out alive. Recently, there was a decision by the Second Circuit Court of Appeals on a Connecticut case that a court-appointed attorney and a conservator involved in an elderly man’s improper conservatorship were not entitled to absolute federal quasi-judicial immunity and can be sued. Unfortunately, Daniel Gross died before he could enjoy that victory, but his daughter, Dee King, will pursue it.

On our website we ask “Who’s to Blame” – and the list is long. However, as we’ve been learning more and more over time, the greatest share of blame lies with the judges and their blatant violation of law on several issues:

(1)  The first requirement of due process of law is notice. A judge must first look to his/her jurisdiction. After a petition is filed, and if it has slipped by the court clerk without proof of service on all parties, then the judge is to blame if he/she proceeds with the case, without personal jurisdiction. Due process requires both sides of a case to be noticed and present. “Both sides” means the victim and his/her relatives should have prior notice of a petition having been filed. If there is no due process notice prior to an adjudication of incompetency, such an order should be vacated, as void. But will the “tag team” players raise that issue? Not if they’re looking to land another lucrative guardianship! And how can the victims (non-noticed “respondents”) hire a lawyer if their assets are suddenly no longer under their control, having already been confiscated by a judge and turned over to a court-appointed guardian or conservator, without due process of law?

(2) The second element of constitutional due process is “opportunity” – opportunity for both sides to participate in a hearing, which must be fair and impartial. With the growth of so-called “emergency” petitions, there is total violation of rights if an adjudication is made based on an ex-parte “hearing.” Mere conclusory allegations contained in a petition heard ex-parte do not constitute evidence. The legislators are to blame if they don’t fix that growing problem.

(3) The third element, “fair and impartial,” means that both sides should be present and participating and the judge should be fair and impartial. Really? Not in the guardianship game!

(4) Next comes the statutory evidentiary requirement for guardianship and conservatorship cases in most states. In making findings, a judge must follow the “clear and convincing” standard and recite such in the order of adjudication. Those critical words are necessary to support findings, if any – and there are occasions when there are no specific findings!

(5) Having once signed an order committing a vulnerable person to a lifetime in “protection” jail, stripped of all rights including the right to complain, is the judge off the hook? Not yet, he/she is responsible for what the appointed fiduciaries are doing. Many judges fail to monitor their cases. Many “conservators,” failing to conserve the ward’s assets, simply help themselves to them without seeking court authority for payment. And many judges, even if authority is sought, don’t bother to examine the billings, merely rubberstamping their approval.

The offices of court administration are also to blame for lack of monitoring of what their judges are doing.

And where is law enforcement in this? Generally not interested, but maybe they’re waking up! The FBI has just raided a Georgia probate judge’s records and confiscated them all. We anxiously await further news on this exciting issue.

And then there is the public interest. Protective statutes are promulgated in the public interest, and the public must know what’s going on in the courts! Operating under color of law and cloak of darkness is an invitation for rape and plunder by professional fiduciaries (“persons of trust”?).

Excessive sealing of court records in these “protection” cases is unnecessary other than to remove critical personal information. The Chicago Tribune recently had an article on judge’s sealing of all kinds of cases. That should not be allowed, other than to remove critical personal data.

There must be open records so the public knows what’s going on behind the black wall, especially at election time.

See Also:
Retired Chiropractor Returns to Being a Free Man
Elderly Man Can Sue Conservator, Attorney for Nursing Home Stay
NASGA:  Who’s Really to Blame?

How clout keeps court cases secret

On the eighth floor of the Daley Center, behind a locked metal door, is a narrow room known as the vault.

Within its walls reside files that Cook County Circuit Court judges have ordered hidden from the public, something they have done hundreds of times since 2000.

Although state law requires that certain types of lawsuits must be sealed, a Tribune investigation has found that judges improperly removed others from public view, including cases involving a famous chef, millionaire businessmen and even other judges.

The Tribune’s review of cases found that judges regularly fail to give a reason in their written orders for sealing files; hide entire case files when they needed only to remove sensitive information such as Social Security numbers or home addresses; and that the sealing orders often remain secret despite state case law finding orders are public documents and “should not be kept under seal.”

Courts in the United States have a long tradition of openness, and experts say court secrecy fosters mistrust and can put public safety at risk.

“These cases go to the integrity of the courts system,” said Arthur Bryant, executive director of Public Justice, a Washington, D.C.-based group that has fought for openness in the courts. “It is hard to have a democratic system, or one that works to make sure the law is just and the courts are fair, if what happens in the courts is secret.”

In Illinois, bills aimed at curtailing secrecy in the courts have failed multiple times in the Legislature since 1999, opposed by the health care, insurance and manufacturing industries.

There is no way to know what is contained in Cook County’s sealed files since they remain in locked rooms. But a review of dozens of previously sealed court files in the Law Division offers a glimpse, with instances of the well-connected and the well-known having their cases hidden from the public.

One such case involved chef Laurent Gras, who led Chicago’s acclaimed L20 restaurant to achieve Michelin’s three-star rating, the guide’s highest.

Gras, an avid cyclist, was riding his $11,000 S-Works bike on the city’s North Side in September 2008 when he and a car collided in an intersection, according to court records. He suffered seven broken ribs, a collapsed lung, two pelvic fractures and cuts and bruises.

In December 2008, he sued the 22-year-old driver in the Law Division, where complex legal battles play out and where large amounts of money are at stake.

Gras filed his complaint under a pseudonym, “John Doe,” and asked Judge William Maddux to seal the entire file. Maddux, who presides over the court’s Law Division, granted Gras’ request.

Maddux gave no reason in his written order for sealing the file.

Instead, his order contained vague language similar to what is found in other judges’ orders for sealing files: “Plaintiff’s motion is granted and this cause of action shall be filed under a fictitious name and the court file shall be sealed and not unsealed until further order of the court.”

Full Article and Source:
How clout keeps court cases secret

Witherspoon case closed: Judge to seal records

NASHVILLE, Tenn. — A judge agreed to dismiss the emergency conservatorship request by Reese Witherspoon in her father’s interest Monday morning and ordered that the court file remain sealed from the public.

In May, Witherspoon filed an emergency motion to have her father, Dr. John Witherspoon, placed under a conservator after he was accused of marrying another woman while still married. Betty Witherspoon filed a lawsuit protesting his marriage to Tricianne Taylor, saying he was suffering from depression and possibly early onset dementia.

Circuit Judge Randy Kennedy has ordered nearly all proceedings in the conservatorship case be secret, in addition to any court records detailing John Witherspoon’s situation. The Tennessean and WSMV-Channel 4 sued to unseal the proceedings and records.

On Monday, attorneys for Reese Witherspoon, Betty Witherspoon and John Witherspoon, in addition to the temporary guardian assigned to the case, agreed to drop the conservatorship. Reese Witherspoon’s attorney, Andra Hedrick, said vaguely, “The situation has changed” and that the parties had all “dealt with this in a private way.”

In a separate ruling, Kennedy said that the media and public do not have a right to see records filed in the conservatorship, accusing the media of tabloid journalism. Kennedy’s ruling means the case will remain sealed from public eyes unless a higher court overrules him.

Full Article and Source:
Witherspoon case closed: Judge to seal records

>Judge Speaks Out Against Record Sealing

>A Dauphin County trial judge has come down hard against the practice of sealing judicial records, calling it “unconstitutional” and an “invitation to secrecy and, potentially, abuse.”

In a strongly worded four-page opinion filed April 19 in Gebhardt v. Woods , Judge Lawrence F. Clark denied plaintiff Stephen Gebhardt’s motion to seal all pleadings, motions and replies, saying a litigant’s desire to preserve his or her privacy in a case is no excuse for a court to deprive the public access to judicial records.

“In the past, the courts have summarily sealed records,” Clark said. “It was unconstitutional then and it is unconstitutional today.”

Robert C. Clothier, co-chair of Philadelphia-based Fox Rothschild’s media, defamation and privacy law practice, said Clark’s opinion is, on the one hand, unremarkable since it’s been well-established that a party’s desire to keep information private is not enough to warrant the sealing of a judicial record.

What is noteworthy, Clothier said, is “the heartfelt way in which he articulated the policies underlying openness.”

“That’s what’s remarkable and heartening to see: how strongly the judge here conveys the importance of openness in the courts,” he said.

Clark said the public has an “extremely broad” right of access to court records.

“Obviously, in modern times there has been a grand impetus toward the accessibility of public information,” Clark said. “Furthermore, it is not a sufficient basis to seal a record just because the parties agree amongst themselves that it would be in their best interests to seal part or all of the record.”

Clark said doing so would rob Pennsylvania citizens of “their fundamental constitutional right to access such information.”

According to Clark, judges have a duty to uphold this right and to maintain transparency, even if it means doing so at the expense of the parties involved in the case.

“Every judicial officer from the newest magisterial district judge to the chief justice of the Supreme Court takes the same oath of office before commencing their duties, which oath binds them to ‘support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity,'” he said, citing Article VI, Section 3 of the Pennsylvania Constitution.

Full Article and Source:
Dauphin Co. Judge Speaks Out Against Document Sealing