Protected or Prisoner Part 5: Game changer! Alabama Supreme Court admonishes Judge Alan King in Joann Bashinsky case

By Apryl Marie Fogel 

While the war will wage on for families throughout Jefferson County and the state of Alabama seeking to regain their independence from a broken conservatorship system, the good guys won a critical battle today. The Alabama Supreme Court ruled in favor of Joann Bashinsky (aka Mrs. B or Mama B) freeing her from the “prison” of a court-ordered contested conservatorship that Judge Alan King wrongly put her under. 

 

I had the pleasure of congratulating Mrs. B by phone after the ruling came out, and she told me, “I’m happy. I feel vindicated by the Supreme Court’s ruling.” Her tone was lighter than in any previous conversation we’ve had before, now that the stress and burden of the personal hell she’s been put through has been partially lifted.

 

I told her that since we last spoke, I’ve heard from others whose cases eerily track with the same M.O. used by Judge King and the same conservator of her case, Greg Hawley. These individuals show up to court with lawyers of their own only to have King disqualify them, and Hawley being given a conservatorship “temporarily.” As in her case, the temporary orders lasted well past the 30-day limit the court intended. There were also emergency petitions granted when no emergency existed. I asked her if she had any thoughts for other families going through this, and she said, “I hope others continue to fight, and I hope they can win.”

 

While the news of her case was positive, she reflected on the fact that others still are, and will still be caught up in the system. She wished them success and said, “I hope they don’t have to go through what I did.”

 

She hasn’t forgotten how this all started for her either, “It’s sad that two former employees could use our court system to steal my freedom. It should have never happened. Anyone who does this should be held accountable.”

 

Mrs. B’s case was the catalyst to what has become a personal mission that will continue even after this ruling. I’ve spoken to around a dozen other people, from lawyers to family members about other questionable conservatorship decisions made by Judge King. These decisions led to the appointment of Greg Hawley specifically. Several of these cases are still in “temporary” status and pending the review of court long after the 30-day limit that the Supreme Court just reinforced as law. Additionally, I have asked the Jefferson County Probate Office for records to examine even more cases and data (story coming on their refusal to release public documents and records coming soon).

 

I will work diligently to help shine a light on other examples of wrongdoing, like what happened in this case. If I have learned anything, it is that this was not an isolated case of what the same behavior the Supreme Court called “egregious.”

 

I cannot do justice to the opinion by paraphrasing it, so let me just pull the highlights for you. 

 

On the matter of Judge King misusing the “temporary” authority and how the case didn’t meet “emergency” standards:

 

 

Put simply,

the purported evidence presented to the probate court clearly,

and by any standard, did not establish that an “emergency”

existed that required action so immediate that the probate

court could not allow Ms. Bashinsky an opportunity to respond

to the accusations or to retain counsel after the probate

court, at the outset of the hearing, dismissed the three

lawyers she had chosen to represent her. Consequently, the

provisions in the AUGPPA requiring notice, the presence of

counsel for the respondent, and an opportunity for the

respondent to present arguments and evidence could not be

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circumvented in this instance. See §§ 26-2A-102, 26-2A-103

and 26-2A-134(a), and 26-2A-135.

Any lingering doubt that the situation was not a true

emergency is erased by the probate court’s scheduling of the

subsequent hearing on the permanent petition. As was

recounted in the rendition of the facts, the hearing on the

emergency petition was held on October 17, 2019. After the

probate court rendered its judgment appointing a temporary

guardian and conservator, the probate court scheduled a

hearing on the permanent petition for March 12, 2020, five

months after the emergency hearing. In a dependency context,

removing a child from the custody of a parent without giving

that parent notice and an opportunity to be heard requires

that a full hearing be scheduled within 72 hours of such a

determination. See § 12–15–308(a), Ala. Code. 1975.

Temporary restraining orders are subject to a 10-day

limitation period. See Rule 65(b), Ala. R. Civ. P. Section

26-2A-107(a) itself limits the appointment of a temporary

guardian to 30 days, a provision Judge King attempts to ignore

by ordering that the temporary guardian’s appointment “shall

automatically renew every fifteen (15) days until the

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Permanent Hearing in this matter.” The short duration of such

orders underscores that emergency rulings are permitted based

on the understanding that the truncation of constitutional

due-process rights they entail will be mitigated in short

order. The probate court’s decision at the October 17, 2019,

hearing not to grant a continuance to allow Ms. Bashinsky to

retain new counsel is unfathomable, given the length of the

scheduled delay between the hearings on the emergency petition

and on the permanent petition. More broadly, the fact that

the probate court believed that the matter could wait another

five months for a permanent determination starkly illustrates

that any potential harm to Ms. Bashinsky’s health, safety, or

welfare was not immediate or substantial, i.e., this was not

an “emergency” by any reasonable definition.

 

On the violation of her constitutional rights and the prejudgement of the case: 

 

However, it is still the case that the probate court

disqualified Ms. Bashinsky’s attorneys at the outset of the

October 17, 2019, hearing on the emergency petition and that

she was not afforded the opportunity to retain new attorneys

or to present any evidence or question witnesses at that

hearing. Because we have determined that no “emergency” was

presented in that hearing, the representation and casepresentation

rights afforded to a respondent in §§ 26-2A-102

and 26-2A-135 were applicable. Those provisions, and

Ms. Bashinsky’s basic due-process rights, were egregiously

violated, as the probate court treated the proceeding like an

ex parte hearing even though Ms. Bashinsky was present.

16The statutory provision under which Prestwood was

decided, § 26-2-43, Ala. Code 1975, was modified by § 26-2A-

103, Ala. Code 1975, of the AUGPPA in 1987. However, the

requirement that notice be given to “the person alleged to be

incapacitated” has remained consistent in the law, undoubtedly

because, as the Prestwood Court noted, “fundamental fairness

would require adequate notice of a competency hearing.”

Prestwood, 395 So. 2d at 11.

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But the problems with the probate court’s

disqualification of Ms. Bashinsky’s attorneys extend even

beyond basic constitutional due process and the procedures

afforded by §§ 26-2A-102 and 26-2A-135. The probate court

disqualified Ms. Bashinsky’s attorneys primarily based upon

Rules 1.7 and 1.9 of the Alabama Rules of Professional

Conduct. Both of those rules expressly state that the

conflicts of interest described therein can be waived by the

client if the client is made aware of the conflict and still

elects to have the attorney continue the representation. Yet,

there is no indication that the probate court asked

Ms. Bashinsky at any point during the October 17, 2019,

hearing whether she was aware of her attorneys’ alleged

conflicts of interest. This fact suggests that the probate

court had already decided that Ms. Bashinsky was not competent

to make her own decisions because the court assumed for itself

the duty of determining that the alleged conflicts could not

be waived. In other words, the probate court’s

disqualification of Ms. Bashinsky’s counsel at the outset of

the October 17, 2019, hearing indicated prejudgment of the

very question at issue in that hearing: Whether

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Ms. Bashinsky’s competence was sufficiently in question to

warrant appointment of a temporary guardian and conservator.

Moreover, the manner in which the probate court handled

the issue of the motion to disqualify Ms. Bashinsky’s

attorneys — granting the motion and then choosing to proceed

directly with the hearing on the issue of Ms. Bashinsky’s

competence — created an unnecessary complication that was

highlighted by the probate court’s subsequent scheduling of a

hearing in January 2020 to discuss how Ms. Bashinsky’s new

attorneys were to be selected. That is, because the probate

court disqualified Ms. Bashinsky’s attorneys and then declared

Ms. Bashinsky to be incompetent, it raised the specter that

she cannot enter into a contract to hire new counsel to

represent her interests in this matter. This complication

would have been avoided if the probate court had followed

basic procedures of due process and fundamental fairness with

respect to Ms. Bashinsky.

In sum, because the allegations raised in the emergency

petition and the facts presented in the hearing on that

petition clearly did not constitute an “emergency,” the

provisions for appointing a temporary guardian or conservator

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in §§ 26-2A-107(a) and 26-2A-136(b)(1) were inapplicable.

Under §§ 26-2A-102 and 26-2A-135, Ms. Bashinsky was entitled

to have counsel of her choosing represent her, to crossexamine

witnesses, and to present evidence on her behalf, none

of which she was afforded in the October 17, 2019, hearing and

which, in fact, was openly refused by the probate court.

Furthermore,

“[p]rocedural due process, as guaranteed by the

Fourteenth Amendment to the United States

Constitution and Article I, § 6, of the Alabama

Constitution of 1901, broadly speaking, contemplates

the rudimentary requirements of fair play, which

include a fair and open hearing before a legally

constituted court or other authority, with notice

and the opportunity to present evidence and

argument, representation by counsel, if desired, and

information as to the claims of the opposing party,

with reasonable opportunity to controvert them.”

Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992) (emphasis

added). Thus, Ms. Bashinsky’s constitutional and statutory

rights of due process were also violated through a deprivation

of counsel and a lack of opportunity to present evidence and

argument before the probate court. “A judgment is void … if

the court rendering it … acted in a manner inconsistent with

due process.” Insurance Mgmt. & Admin., Inc. v. Palomar Ins.

Corp., 590 So. 2d 209, 212 (Ala. 1991). Accordingly, we

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conclude that the probate court’s October 17, 2019, order

appointing a temporary guardian and conservator must be set

aside.

 

You may read the Supreme Court Opinion in its entirety below. 

Click to read

Full Article & Source;

Protected or Prisoner Part 5: Game changer! Alabama Supreme Court admonishes Judge Alan King in Joann Bashinsky case