Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)February 16, 1995
Presiding Judge Sebring and Other Judges
Pierce County Superior Court
County-City Building
930 Tacoma Ave. So.
Tacoma, WA 98402Re: Judicial Abuse of the Elderly in This County
Dear Presiding Judge Sebring and Other Judges (except J. Fleming):
Judge Sebring's refusal to meet with me compels me to write to each of you to call your personal attention to what I regard as flagrant systemic abuse by your Court of the fundamental rights of the elderly in this county. The guardianship initiation procedures routinely applied by your Court to its elderly victims are a mockery of justice and fundamental rights. My conscience compels me to do whatever it takes to bring about a correction of these abusive judicial procedures.
I became aware of the systemic judicial elder abuse through a guardianship case (involving Comm'r Boyle and Judge Fleming) that is summarized in the enclosed Statement of Grounds For Direct Review. My elderly client became so disillusioned and abused by your system, that she gave up without appealing the guardianship order against her. The only remaining controversy I could use to focus appellate scrutiny on your abusive system was the denial of my fees for representing my elderly client. I recognize that I ask a lot for the Supreme Court to address the broad public policy issues raised in the Statement based only upon the denial of my fees, but that is what I am seeking.
Whether or not the Supreme Court accepts the case, I am using the case as a vehicle to attempt to publicize and hopefully bring about a correction of some of the abusive aspects of the system. I have distributed over 150 copies of the Statement to Pierce County attorneys and bar leaders throughout the state and to leaders of organizations interested in the rights of the elderly. If we are truly professionals, we will correct some of the systemic problems without awaiting mandates from appellate courts or the legislature.
Judge Sebring's letter to me stated that it was inappropriate for him to comment upon the decisions that denied my fees. I do not ask that he or any of you do so! I ask that you all review the outrageous procedures whereby your Court processes--not protects--the unfortunate elders alleged to be incompetent. I urge you to review RCW Ch. 11.88 (portions enclosed), review some case files, review the Guardian ad Litem ("GAL") training materials (notebook and video tapes) that your Court has approved for GAL training in this county, and talk to some of the commissioners and lawyers involved in guardianship practice.
Fundamental Due Process Abuses. In In re Qeusnell, 83 Wn.2d 244 (1973)(copy enclosed) the Supreme Court recognized the fundamental rights of an accused in a mental illness proceeding to be zealously represented by his or her chosen counsel, to confront and cross-examine adverse witnesses, and impliedly to present friendly witnesses. RCW 11.88.070(3) states, "The standard of proof to be applied in a contested [guardianship] case, whether before a jury or the court, shall be that of clear, cogent, and convincing evidence." Notwithstanding that case law and statutory law, the abusive procedures of your Court do not even permit an accused elder to present testimony or other evidence of his or her competency unless they demand a jury trial. On your Court's GAL training tape (from the January 28, 1994 GAL training session), Diana Kiesel unequivocally states that testimony is not permitted at guardianship hearings, and that the only way an accused elder can present testimony is to demand a jury trial (and bear the costs of all the participating attorneys). It seems the only purpose served by the elder's attendance at the guardianship hearing is be the target of verbal abuse by the others present.
Insidious Relationships Among Counsel. Your Court's 1994 GAL training notebook describes, at page 131, the hazards of informal relationships between attorneys involved in guardianship proceedings:
"Informal relationships between the petitioner's attorney (or the petitioner) and the guardian ad litem have been a particular concern for advocates evaluating the guardianship system. If the guardian ad litem is too close to the petitioner's attorney, the guardian ad litem may find it awkward to disagree with the petitioner's requests. Such a situation seriously jeopardizes the rights of the alleged incapacitated person and cannot be allowed.Notwithstanding that, it is routine practice in this county for the petitioner's attorney to request, and to be given, their chosen one as GAL. In fact, Diana Kiesel instructs on the GAL training video that petitioning attorneys should actively "shop" for a GAL, discussing their case with potential GAL candidates before filing the guardianship petition and requesting a specific GAL."To help avoid such problems, the 1990 guardianship legislation establishes a registry for guardians ad litem. In the past, when a petitioner or petitioner's attorney recommended a specific person to serve as guardian ad litem, the guardian ad litem could then feel a subtle sense of obligation to the attorney. This kind of feeling impairs the guardian ad litem's independence. Under the new law, the court must have a list of qualified people and must appoint a guardian ad litem from the list without relying upon such recommendations from the petitioner or the petitioner's attorney."
What's worse--many times worse--is that if the accused elder needs an appointed attorney to advocate his or her preferences, the GAL reports that to the commissioner who then, according to Diana Kiesel on the training video, routinely will ask the GAL who she or he would like to work with on the case! So, the GAL routinely hand-picks the attorney who is supposed to oppose the GAL if the accused elder wishes to contest the GAL's recommendations. If that's not an outlandish conflict, nothing is.
On the subject of insidious informal relationships among counsel involved in guardianship proceedings, I am alarmed at the concentration of guardianship practice in this county within a tight little group of attorneys. Though the GAL registry numbers about 40 attorneys (non-attorney GALs are discouraged by your Court), I know that several have been on the list for over a year without ever having been appointed as a GAL. I am confident that a review of the guardianship cases filed in the last few years will show that ten or fewer attorneys handle 90% or more of the guardianship cases in your Court. They have developed, among themselves and the friendly commissioners before whom they regularly appear, their own unwritten code of standards and procedures for efficiently processing the hapless elders who come down their assembly line. I am appalled!
Conscious Disregard of Elders' Presumption of Competency. RCW 11.88.090(2)(last sentence) states, "The appointment of a guardian ad litem shall nave no effect on the legal competency of the alleged incapacitated person and shall not overcome the presumption of competency or full legal and civil rights of the alleged incapacitated person." RCW 11.88.090(7) permits a GAL to give consent only to emergency life-saving medical procedures needed by an elder who is unable to consent to them. In disregard of those statutory provisions, Diana Kiesel teaches prospective GALs on your Court's approved training video that upon appointment, the GAL takes charge of everything concerning the elder, makes all health care decisions for the elder, and takes control of the elder's bank accounts and other assets. She teaches that upon a GAL's appointment, persons who previously were acting for the elder under powers of attorney must stop doing so. Ms. Kiesel seems to treat the GAL's appointment as the equivalent of a temporary determination of full incapacity, or at least reverses the presumption from one of capacity to one of incapacity.
In the case that I handled, Diana Kiesel was outraged that subsequent to her appointment as GAL, I helped my elderly client sign a new will. Ms. Kiesel then demanded by subpoena that I produce it to her, even though I previously had cited to her In re York, 44 Wn. App. 547 (1986)(copy enclosed), holding that the superior court lacks jurisdiction to compel production of a living person's will. Your Court's written GAL training materials even instruct, at page 269, GALs to review the elder's will and identify the beneficiaries named in it. In addition, those materials, at page 284, instruct GALs to append an inventory to their report publicly disclosing the elder's financial affairs well before any determination is made of the elder's competency or need for a guardian. How many people do you know with "full legal and civil rights" who wish their personal financial affairs to be made public?
The point I am stressing is that your Court's approved training materials, and your Court's established procedures, are directly at odds with the statutes!
I recognize that I am sticking my neck, and potentially my career, on the line by addressing you in this fashion, but it appears to me to be necessary to take this stand. I take full responsibility for this action. No other attorney (neither my associate, Jim MaGee, nor my office-sharing colleague, Steve Quick-Ruben) is yet aware of this letter, though I may share it with the entire world if I cannot motivate corrective action otherwise. Thank you for your understanding.
EnclosuresVery respectfully yours,
Douglas A. Schafer
WSBA No. 8652
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)March 29, 1995
Judge Bruce W. Cohoe
Pierce County Superior Court, Dept. 14
County-City Building
930 Tacoma Ave. So.
Tacoma, WA 98402Re: Local Guardianship Procedures and Practices
Dear Judge Cohoe:
Thank you for your letter of March 27, 1995. I also received today a letter dated March 28, 1995, from the local bar association president, Joseph F. Quinn, indicating that an ad hoc committee composed of Messrs. Henry Haas, Michael B. Smith, and John B. Troup would be looking into the guardianship issues. I appreciate the apparent willingness of the bar and bench to look into them.
I note that Mr. Quinn urged the committee not to address issues "primarily within the purview of the Pierce County Superior Court," such as the manner by which court commissioners select guardians ad litem and, presumably, attorneys to represent alleged incapacitated persons. Your letter indicated that the bench would await the findings of the bar association before it addresses any of the guardianship issues that have been raised. I respectfully request that the bench either invite the committee to address all of the important issues, or begin without delay itself addressing those issues that the committee will not be addressing.
Thank you for providing me a copy of Mr. Monte E. Hester's letter of February 24, 1994, to you and the other members of the bench. I will withhold comment about it, but for one important point that keeps coming up. Mr. Hester states on page 3 that I "allowed the case to be heard by Commissioner Boyle where testimony is not available." [Emphasis added.] His statement is consistent with Ms. Kiesel's statement on the GAL training video that parties "technically" cannot present testimony at guardianship hearings.
I am a technical lawyer who tries diligently to read all the statutes, regulations, case law, and court rules relevant to my practice and my clients' cases. I can report confidently that nothing in the guardianship statutes, RCW Ch. 11.88, suggests that testimony is not permitted at guardianship hearings. I have found no case law or court rule by the Supreme Court suggesting its impermissibility. I have poured over the local rules, and likewise found nothing suggesting that testimony is not permitted at guardianship hearings before court commissioners. The only reference I could find suggests exactly the opposite. PCLR 7(g)(5) states:
"(5) Transcript Required. When seeking revision of a ruling of the court commissioner which was based upon testimony, such testimony must be transcribed."Would you please clarify for me if there is any present authority beyond ipse dixit for the assertion that testimony is not permitted at guardianship hearings. Further, if the bench considers such a rule to be necessary, could it possibly be published as a local court rule for the benefit of those lawyers who read such rules? Thank you very much for considering this.cc: Joseph F. Quinn, AttorneyVery truly yours,
Douglas A. Schafer
Terry D. Sebring, Presiding Judge
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)May 18, 1995
Commission on Judicial Conduct
Attn: Sally Carter-DuBois, Investigative Officer
P.O. Box 1817
Olympia, WA 98507Re: Pierce County Superior Court Guardianship Abuses
Dear Ms. Carter-DuBois:
Following-up on my phone conversation today with Kathy Sullivan of your office, I enclose various materials relating to my "crusade" against what I believe to be systemic abuse by the Pierce County Superior Court, its commissioners, and its guardians ad litem of fundamental rights of elderly and disabled citizens in guardianship proceedings. Though I realize that such general systemic abuse is beyond your scope of interest, you should become aware of it. There may well be specific instances of judicial misconduct that come to light once this guardianship scandal becomes widely publicized.
As an example of such possible judicial misconduct, I enclose a copy of a Declaration of Anne N. Solwick filed January 6, 1994 in Guardianship of Anna Shay (Pierce County Superior Court No. 93-4-00873-5) that my colleague discovered while reviewing court files. It indicates that Commissioner Megan Foley was a guest at attorney Diana Kiesel's Christmas party, and that the guardianship attorneys present sat with the commissioner around a table discussing, over drinks, a case that was scheduled to come before the commissioner. I have no idea how often Commissioner Foley parties with Diana Kiesel and the other guardianship attorneys who regularly appear before her, but it is common knowledge among lawyers in this county that Commissioner Foley and Diana Kiesel appear to be very close friends. I'll leave it to you to decide whether further investigation is warranted.
As I mentioned to Ms. Sullivan, I would appreciate your office advising me of any reported case or other authority that specifically addresses whether confidentiality requirements such as those claimed by your commission are Constitutional. I have serious doubts. Further, I think the fact that I have made a complaint to your office (Case No. 94-1906) over a court commissioner's insult of my elderly client in a guardianship proceedings is quite newsworthy in the context of the guardianship abuses that I am attempting to bring to the public's attention. Thank you for giving this your attention.
EnclosuresVery truly yours,
Douglas A. Schafer
cc: Randy V. Beitel, WSBA Staff Attorney
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)December 27, 1995
All 18 Judges of the
Pierce County Superior Court
930 Tacoma Ave.
Tacoma, WA 98402Re: Curing the Pierce County Superior Court's Sick Guardianship System
Dear Judge:
Enclosed is a copy of the article from yesterday morning's edition of The News Tribune announcing the report (dated 12/8/95, released 12/18/95) of the Tacoma-Pierce County Bar Association's ("TPCBA") Guardianship Task Force, a copy of which is also enclosed. I also enclose a copy of the report of the TCPBA's Special Guardianship Committee, dated 6/9/95. In yesterday's article, Judge Sebring said he had not yet seen the latest report, and it occurred to me that some of you may not have seen either report. While I cannot force you to read these reports, I can deny you the opportunity to claim blissful ignorance of the problems they identify in your court's guardianship system.
There were about 250 guardianship petitions per year filed in Pierce County Superior Court from 1992 through 1994--about 21 per month. In the more-than-10 months since I tried to get your attention with my letter to you of 2/16/95, probably 200 or more vulnerable elderly or disabled individuals have been newly processed and abused by your guardianship system--which routinely denies them fundamental due process and other rights. Uncounted other victims suffer under previously established, and possibly unnecessary, full guardianships. (Jerry Neil claimed last January that his guardianship business alone manages 227 active cases, and he probably manages more now.)
None of you even acknowledged receiving my 2/16/95 letter to you, much less expressed any concern about the abuses it exposed. On 5/10/95, I delivered to each of you a copy of my "Appeal to Legal Professionals to Cure a Sick Guardianship System," including transcripts of portions of your court's implicitly approved guardian ad litem training tape and of representative guardianship hearings. None of you even acknowledged receiving that appeal, much less expressed any concern about the abuses that it documented.
The callous indifference you judges have shown so far to the egregious mistreatment of elderly and disabled individuals by your court astounds me. While some blame for the systemic abuses rests with the local guardianship lawyers, most of the blame must be directed at you judges and your commissioners who, by your orders and written or unwritten rules, expressly supported or passively sanctioned every misguided step of those lawyers.
I challenge each of you to take an active interest in these problems and to help correct them. Read some of the voluminous literature that has been written in the last 10 years about guardianship reform (which supposedly occurred in Washington 5 years ago). Compare what you read to your court's system. Read the applicable RCWs and the materials that I gave you previously. Agree to serve on your defunct Guardian ad Litem Committee prescribed by your Local Court Rule 0.6(A)(6). Meet with the authors of the two TPCBA reports (or with me). Do something responsible yourself, don't just try to "pass the buck."
On the 1994 guardian ad litem training tape, attorney Jerry Neil openly describes Commissioner Foley as having been a mediocre lawyer before she donned black robes. I cynically believe such comment could be made about each of you, from what I've observed and heard privately from the many local cynical lawyers who hold out no hope for responsible leadership from your court (described by some as 18 "kingdoms"). But I have not given up all hope. Please act in a way that will enable me and others to genuinely respect you individually and institutionally.
And please act promptly--remember, there are 20 or more new elderly and disabled victims processed by your guardianship system each month. Pretend that one of them in next month's batch is someone you care about. Thank you.
EnclosuresVery impatiently yours,
Douglas A. Schafer
WSBA No. 8652
cc: Chief Justice Barbara Durham
Letter of Jan. 5, 1996 to Chief Justice Barbara Durham
from the Chair of AARP-WA Vulnerable Persons Committee
(in PDF format, so must be viewed using the free, widely available Adobe Acrobat Reader)That letter, on AARP letterhead and shared with me after it had been sent, read as follows:
Michael A. Courtney
[address omitted here]January 5, 1996
Chief Justice Barbara Durham
Olympia, Wa.Dear Chief Justice:
I am a volunteer with the American Association of Retired Persons serving on the State Legislative Committee and Chair of the Vulnerable Persons Committee. I have been following the apparent lack of interest shown guardianship problems by the Superior Court of Pierce County since early 1995. Attached is the News Tribune article of June 15, 1995 outlining recommendations by a special committee of 3 Past Presidents of The Tacoma Pierce County Bar Association. Attached also is a copy of the Committee report dated June 9, 1995, and finally a News Tribune Editorial dated Dec. 28, 1995 reviewing this very long-awaited report from another Special Committee to correct the problems outlined by the previous Special Committee Report. Over 6 months is intolerable to wait for problems such as this to be resolved.
What I find even more outrageous, is that this issue would be left to be reviewed by the Pierce County Bar Association, rather than the Superior Court of Pierce County. This might give the appearance of the fox guarding the chickens. Is it any wonder that the American Public is losing faith in not only our Justice system, but Government in general.
What is the relationship between the Superior Court and the Bar Association, that only one lawyer would dare to bring up problems that apparently have been going on for some time. Why have no others in the legal or judicial system had the courage to back up this lonely lawyer who brought up these issues that were ultimately validated by two special committees? These are questions that need to be answered to ensure the Justice is not blind or slow in Pierce county.
If I am in error in asking your assistance to resolve this problem, please advise who I should contact, and I will take whatever action you recommend.
Sincerely,
/s/ Michael A. Courtney
Schafer Law Firm
Washington Building, Suite 1302
1019 Pacific Avenue
P.O. Box 1134
Tacoma, Washington 98401-1134
(206) 383-2167 (Fax: 572-7220)March 29, 1996
Chief Justice Barbara Durham
State of Washington Supreme Court
Temple of Justice
P.O. Box 40929
Olympia, WA 98504-0929Re: Pierce County Superior Court Guardianship Practices, Judicial Malfeasance and Retaliation.
Dear Justice Durham:
I purposefully copied you with my letter of December 27, 1995, in which I accused the 18 Pierce County Superior Court judges of callous indifference to the egregious mistreatment of elderly and disabled persons involved in guardianship proceedings in their court. I was then astonished and angered that they had ignored patently obvious and fundamental problems for 10 months; it has now been 13 months.
Judge Donald H. Thompson exacted his revenge today, by summarily (with no pretense of "due process") ordering me to cease representing my client Don Barovic, whose deceased father's guardianship case represents the "poster child" case illustrating the judicial abuses that have been and remain rampant in Pierce County Superior Court. I am not yet sure how to proceed, but am considering a 42 U.S.C. § 1983 action personally against Judge Thompson (and possibly other judges).
Regardless of Judge Thompson's order, I intend to continue crusading to correct the serious abuses in local guardianship proceedings. I am well aware that the legislature reacted decisively when shown these abuses, by enacting SB 6257, which Governor Lowry signed today. However, since the Pierce County Superior Court judges, commissioners, and guardianship lawyers ignored the prior law, I have no reason to expect that they will even attempt to be faithful to the new law. The Pierce County Superior Court is truly sick. All 18 positions are open for election this fall, and I intent to make as much "noise" as possible about their obvious indifference or incompetence with respect to guardianship matters.
I have no idea if you can do anything, or may even desire to do anything. In case you are interested, I enclose a collection of my letters from the last 13 months to judges, bar leaders and lawyers, law school deans, the media, legislative members and staff, the governor, and other persons describing various important issues relating to guardianships.
I have, over the last year, come to share the public's perception of lawyers and the judicial system; I now regard most of my spineless, mindless, and uncaring colleagues as mercenaries and prostitutes. They only exhibit "human" concerns and "right the wrongs" when they are paid to do so. As you can probably sense, I've about had it with this lawyer fraternity, that I can no longer view as a profession.
If there is anything at all that you can do to help "right the wrongs," please let me know.
EnclosuresVery truly yours,
Douglas A. Schafer
2003 post script: The Honorable Barbara Durham took medical retirement from the supreme court in 1999, and she died in December 2002 from Alzheimer's Disease, at age 60. See Seattle Times, 2/14/03.