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.
It is not clear whether Stewart, who stepped down from the case after it was accepted by the Court of Appeals last fall, will now be in charge of rectifying her own mistakes or if the case will be passed on to Judge Field Benton, a former Denver probate judge who came out of retirement to take it on when Stewart bowed out.
Letty's supporters are clearly in favor of Benton, who last fall cut payments requested by the various parties, though by then most of Letty's $650,000 estate was already gone ("Changing of the Guard," December 18, 1997). Benton also accepted the resignations of Ayers and Paul and appointed two family friends as Letty's co-guardians--an action Horen had requested in July 1996--and withdrew the restraining order against her son, John.
Late last week, John Milstein described his mother as happy about the decision. He said it has not been decided whether the family will pursue lawsuits against the parties involved in addition to seeking the return of the money paid to them from the estate.
Campbell met with Letty this past Friday for the first time since last May. At that meeting, he says, she authorized him to seek "every penny" taken from her estate. And Campbell says he will continue to do it for free. "I'll kick it all back into her estate," he says. "This is fun...I just remember Liz Paul's motion about what a sacrifice she made working for Letty--$42,000 for five months' work. She'll see what sacrifice means when we come after her.
"This is a complete victory for Letty," Campbell adds. "The message is clear: Judge Stewart did everything wrong she could do."
Although the probate court could decide to let the payments made to its appointees stand, Petrie said it's clear that the appellate court "was critical of the amount of money paid out...You can almost see their eyebrows raised, particularly [about] the money pissed away that had nothing to do with benefiting Letty."
The Court of Appeals decision could affect Stewart's future as Denver's probate judge. During proceedings in the Milstein case, it came out that in addition to her decisions to ignore Colorado law, Stewart had apparent conflicts of interest in that as a former probate lawyer, she once represented Gordon Wolfe, who received more than $40,000 from Letty's estate for a few months' work as her temporary guardian. Wolfe may now have to pay that money back.
Campbell, Petrie and Sargent all note that the publicity following this case could follow Stewart when she comes up for re-election. None will say whether a grievance has been filed against her with the judicial review commission; such matters are confidential.
One source close to the court system notes that it is part of a judge's ethical requirements to safeguard the rights of people in his or her courtroom. Letty's rights, according to the Court of Appeals, were violated repeatedly. Stewart, responding to a telephone call from Westword, says she won't comment "on an ongoing case."
Sargent says it was important that the Court of Appeals decision was "published," which happens only about 25 percent of the time. "It means the decision has precedential value," he says, "and can be cited by future litigants. The message to the judge was: 'You screwed up in pretty significant ways.'"
The decision, he says, was also important in that it tells people whose estates were plundered under similar circumstances that all is not lost. The court's finding that the fees paid in Letty's case should be re-examined leaves the door open to recouping fees in other cases.
"Unfortunately," Sargent says, "I don't think this case was all that unique--except, perhaps, the cast of characters was a little more colorful."
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