Plaintiff in guardianship case wants the judge to step aside

Judge Alan Malott

The daughter of a deceased Albuquerque author suing a commercial guardian and conservator firm is questioning the impartiality of the judge in the case, citing in part his appearance in April with representatives of the guardianship industry at an Albuquerque Lawyers Club panel discussion.

Attorneys for Leonie Rosenstiel are asking District Judge Alan Malott to recuse himself from presiding over her lawsuit against Decades LLC in part because of his participation on a panel whose explicit purpose “was to address newspaper articles about matters that included the Defendants’ (Decades LLC) performance as a guardian or conservator,” according to a motion filed May 15.

The panel discussion was titled “The Truth Underlying the Reporting on Guardianships/Conservatorships in New Mexico.”

The panel’s membership included Gregory MacKenzie, one of the lawyers who has been representing Decades in the pending lawsuit filed by Rosenstiel in 2013. Rosenstiel’s lawsuit contends that Decades and its CEO, Nancy Oriola, were negligent in handling her mother’s assets and in administering her guardianship and conservatorship.

Decades served as Annette Rosenstiel’s court-appointed guardian and conservator from 2003 until her death at the age of 100 – according to court records – in 2012. She had previously been deemed mentally incapacitated by a judge and in need of a guardian and conservator.

The Journal published a series late last fall titled “Who Guards the Guardians?” but didn’t mention Rosenstiel’s mother’s case by name.

Decades and MacKenzie were mentioned in the series because they were involved in another controversial guardian/conservator case.

Malott has set a June 26 hearing on the matter and “all parties will have an opportunity to be heard,” said court executive officer James Noel on Friday. “Subsequently, the Court will make its ruling.”

The Code of Judicial Conduct encourages judges in New Mexico to “engage in appropriate extrajudicial activities” to the “extent that time permits, and judicial independence and impartiality are not compromised.”

The recusal motion filed on May 15 contends that Malott’s “participation in the April 5 panel would cause a reasonable person to question the Judge’s impartiality” and that rules governing judges require him to step aside if that’s the case.

Malott appeared at the lunch meeting panel discussion of the Albuquerque Lawyers Club, a group of attorneys that has informal discussions about legal matters. Other panelists were MacKenzie; Mary Galvez, a professional guardian who is also frequently appointed by judges as a court visitor to advise whether guardianships are needed; and an elder law attorney, Ellen Leitzer.

Panelists, including Malott, were critical of the Journal series.

Leitzer and Galvez have both worked with MacKenzie and Decades’ CEO Oriola “to lobby on behalf of the elements of the commercial guardianship industry in, among other matters, vigorously resisting even modest efforts to improve transparency in guardianship proceedings,” Rosenstiel’s motion contends.

The membership of that panel “was slanted in favor of the commercial guardianship industry,” Rosenstiel’s motion states. Malott’s “mere participation” with attorney MacKenzie “conveys the impression that the Defendants are in a position to influence the Judge.”

The motion also cites statements Malott made as a panelist during a public town hall on guardianships held March 22 and sponsored by the Albuquerque Journal and KANW-FM. Malott appeared as the court’s representative.

That panel’s membership was more diverse than the attorneys’ club panel, Rosenstiel’s motion states, but Malott told the audience that although state law requires all records in guardian/conservator cases to be kept secret, he personally believed only medical and financial information should be sequestered. That “directly relates to confidentiality issues pending before the Court in this (Rosenstiel’s civil case against Decades),” the recusal motion states.

The motion also notes that an attorney for Decades sent Malott a letter about the case in 2014 without notifying Rosenstiel or her attorney. The judge later noted in an order that the defendants sought no special consideration from him and none was given, stated that all communications with him should be filed motions or related to scheduling matters.

Sealed documents

Malott hasn’t yet ruled on the Albuquerque Journal’s motion to open the 20-some sealed filings in Rosenstiel’s lawsuit against Decades – a request echoed by Rosenstiel and her attorneys. Malott recently permitted public inspection of portions of Decades’ response to the Journal motion for unsealing, which was filed in late March. He redacted other portions.

Decades contends that the records in the case should be kept confidential to protect the privacy of Annette Rosenstiel, even after her death. Rosenstiel, who published various articles and books, was married to a New York financial heavyweight, Raymond S. Rosenstiel.

Decades added that they welcomed a public trial on Rosenstiel’s lawsuit, but could not get one if the Journal is allowed to report on the court filings prior to trial.

The Journal and Leonie Rosenstiel argue that the case is a straightforward malpractice civil lawsuit and is improperly sealed. The only privacy interest being protected, they say, is Decades’.

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