Monday, April 3, 2017
Journal seeks to open guardian mismanagement lawsuit
But what happened to her and her assets during the nine years before her death in 2012 is mired in court-ordered secrecy that is opposed by her only child.
Annette Rosenstiel, an author who was married to New York financial heavyweight Raymond S. Rosenstiel, had been the ward of a for-profit guardian/conservator, Decades LLC of Albuquerque, since about 2003.
After her death, Annette’s daughter and personal representative, Leonie Rosenstiel, filed a lawsuit against the company and its founder, Nancy Oriola, alleging negligence and mismanagement of her mother’s assets. But her court complaint, the defendants’ response and more than 20 other documents filed by the parties in the civil negligence case are under seal on the order of a state district judge in Albuquerque.
Leonie Rosenstiel has tried to open up her own case, and on Wednesday the Albuquerque Journal filed a motion seeking to unseal the records, arguing that information about “alleged misbehavior of guardians or conservators should be made public because it is plainly a matter of public concern.”
“Affording blanket protection to information related to Defendants’ alleged mismanagement of a conservatorship or guardianship, when mismanagement by court-appointed guardians or conservators is a critical matter of public concern, offends the notion of the First Amendment right of access to the courts,” the newspaper argued in its motion.
A handful of records that aren’t sealed offer a glimpse into the allegations, which in essence contend that Decades mismanaged the Rosenstiel assets and abused its position as court-appointed guardian and conservator.
One document alleges breach of fiduciary duty, negligent handling of assets, negligence in the administration of the guardianship and conservatorship by a commercial entity and violation of the New Mexico Unfair Practices Act. An accounting is also requested.
Leonie Rosenstiel has tried to have the files in her own lawsuit opened.
Based on what is known, the Journal argues in its motion, that the only interest being protected is the defendants’ interest in avoiding disclosure of Rosenstiel’s allegations against them.
None of the attorneys in Rosenstiel’s civil lawsuit responded to Journal requests for comment on Wednesday, but the lawyer for Decades said his client would oppose the Journal’s efforts to unseal the case.
State law makes virtually all information in a guardianship/conservatorship case confidential, except for the court docket sheet, the kind of guardianship and the name of the allegedly incapacitated person for whom a guardian was appointed.
But this isn’t the guardianship case of Annette Rosenstiel; rather, it is a claim of negligence against the guardian/conservator that was filed after the ward had died. District Judge Alan Malott, siding with Decades and against Rosentiel, ruled earlier that the case would remain sealed because it was related to a guardianship matter.
A court-appointed guardian is responsible for the day-to-day life decisions of a ward, while a conservator manages the financial affairs of a ward. In some cases, the guardian and conservator are one and the same.
Most guardians appointed in New Mexico are family members of the incapacitated person, but in some cases, judges decide a nonrelative should be appointed.
Decades, which has operated since 2001, is among the for-profit corporate companies in the state providing such services.
Leonie Rosenstiel originally initiated the guardian/conservator proceeding in 2003, according to court records, but, because of the secrecy, it isn’t known whether she sought to be her mother’s guardian or why the court appointed Decades LLC.
Records in the negligence case indicate there was a court-ordered forensic audit into some of Decades’ actions as Annette Rosenstiel’s guardian and conservator, although the results are secret.
The lawsuit was initially filed under seal. Rosenstiel subsequently asked for the court records to be unsealed, while the defendants contended they should be automatically kept from the public because they related to guardianship/conservatorship matters. Her lawyer also asked to be able to use portions of the guardianship case in the civil lawsuit.
“The former ward has passed away, and accordingly will suffer no embarrassment if the Sealed Records are unsealed,” Rosenstiel’s attorney, David A. Garcia, argued in a motion filed in 2013.
“Courts seal their records to protect the ward, not to protect the interests of private corporate guardians and conservators.
“Parties to litigation in civil cases would often prefer that as many particulars of the litigation as possible be hidden from the public,” he wrote. “But that isn’t the way court records are handled in the vast majority of cases like the one at bar.”
Decades, in arguing to keep the case sealed, said Annette Rosenstiel’s privacy interests didn’t end simply because she died.
The Journal’s motion to unseal the records in the negligence case, filed by attorney Matt Hoyt, said Malott appeared to interpret state law as automatically requiring that almost all information and documentation related to a guardianship and or/conservatorship proceeding be kept confidential – even though the civil negligence case is not itself such a proceeding.
“There was also no “separate consideration of reasons why the records in this (civil negligence) lawsuit should be sealed,” the Journal said.
The Journal also argued in its motion that the judge has a duty to seal only portions of the records rather than entire documents.
Malott, in his earlier denial of Garcia’s request to unseal the documents, said it would be “overly burdensome and expensive for the parties, and markedly inefficient for the Court, to determine confidentiality of each separate document or item of information as this matter is developed for trial.”
So the judge ordered the sealing of “any pleadings” related to the guardianship/conservatorship proceeding. Actual trial testimony and exhibits would be publicly available if and when the case goes to trial. A trial date is set for later this year.
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Journal seeks to open guardian mismanagement lawsuit