By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
The decisions of a Denver Probate Court judge that deprived 83-year-old Letty Milstein of her rights and her money were slapped down late last week by the Colorado Court of Appeals.
The case of Letty Milstein, mother of Denver socialite Judi Wolf, was sent back to the probate court by the appellate court. One of Letty's attorneys, Cris Campbell, says he will seek the return of more than a half-million dollars taken from his client's estate by what Campbell calls "that incestuous little group of lawyers, conservators and guardians down at the probate court."
Although the Court of Appeals decision does not name or criticize Probate Judge C. Jean Stewart directly, it describes--and reverses--error after error in her handling of the case ("Mommy Dearest," May 22, 1997). "It was a grand slam for Letty," says Walter Sargent, the attorney for Letty's son, John Milstein, and an appellate law expert. "The decision was restrained in tone but firm on every point raised about the trial judge. It was very critical."
Most important, the decision affirmed that Letty--and for that matter, any allegedly incapacitated person--has the right under Colorado law to be represented by counsel and to attend all legal proceedings in person. Stewart had denied Letty both in May 1997 following a secret visit to her home in which the judge interviewed Letty "in lieu of her testimony." At a hearing a few days later, Stewart appointed a permanent guardian and conservator to take over Letty's life and finances ("To Grandmother's House We Go," June 12, 1997).
Before that hearing, Stewart issued an order stating that Letty could not attend. She also decided that the elderly woman lacked the mental capacity to hire legal counsel when Campbell (who had been retained by Letty earlier that month) and another lawyer named Drew Petrie tried to intercede at the hearing on her behalf. The judge demanded that the two attorneys, probate court watchdogs and a reporter for Westword leave the courtroom before proceeding. She then officially declared Letty incapacitated and gave professional guardian Patricia Ayers control of Letty's affairs.
The justices for the Court of Appeals noted that there is no provision in the law for a judge to conduct an interview in lieu of testimony outside the courtroom, "without the procedural safeguards of a hearing." The justices also knocked Stewart's having declared that Letty was incapacitated before the hearing regarding Letty's mental and physical status could even be held.
Letty's misfortunes began in April 1996, when Judi Wolf petitioned Stewart to have a guardian and conservator appointed to take over Letty's life and finances. At an "emergency" hearing, Stewart agreed and appointed social worker Gordon Wolfe (no relation to Judi Wolf) as temporary guardian and Norwest Bank as conservator. The judge made those appointments despite the protestations of Letty's lawyer at the time, Bob Horen.
For the rest of that year, Horen fought the increasing restrictions on Letty, including a restraining order preventing her from seeing her son, John, and the decimation of her estate by a revolving door of guardians and lawyers. Among the guardians was attorney Michael Dice, who was recently sentenced to eight years in prison for stealing from other defenseless clients.
In January 1997, Horen was troubled by Letty's mental deterioration, which he and others attributed to the stress of the court-ordered restrictions. He asked Stewart for guidance. Instead, the judge dismissed him and appointed guardian ad litem Elizabeth Paul "in lieu of legal counsel." The judge later contended that Horen had resigned, a claim he denied.
Noting that a guardian ad litem is not a substitute for a personal attorney, who advocates on behalf of his client, the Court of Appeals justices said Stewart erred in dismissing Horen. The court further noted that Stewart's contentions that Horen had resigned "are not supported by the record."
It wasn't the only place in the decision where the justices seemed to be wondering what Stewart had based her decisions on. "We cannot determine from the hearing orders whether the probate court based its findings upon clear and convincing evidence," the appellate ruling stated, "and there is additional confusion because the court's May 29, 1997, order refers to previous findings and rulings. Yet the record is devoid of any such prior findings or rulings."
The Court of Appeals determined that all decisions made by Stewart after Horen's forced exit from the case on January 17, 1997--including her approval of payments made to the guardians, attorneys, psychiatrists, social workers and the conservator, Norwest Bank--be set aside. The probate court must hold another permanent hearing and was told by the Court of Appeals to look again at the expenditures approved by Stewart.
"The probate court shall conduct a hearing as soon as practicable and reconsider all such court orders authorizing any expenditures after January 17, 1997," the justices wrote. "To the extent the estate has already paid such court-ordered fees and costs...we further direct the probate court ...to determine whether all or part of such fees and costs should be disgorged."
The appellate court's decision was also unusual in that the justices ordered Elizabeth Paul and Ayers's attorney, Bernard A. Poskus, to pay fees and court costs to Campbell and Petrie, who have worked on the case for free, for what the justices described as a "frivolous" attempt to have Campbell and Petrie's petition to the appellate court dismissed. And for once, Ayers, Poskus and Paul will not be able to charge Letty's estate for the expense.