Guardianship Study Commission Message #8

Dear Chief Justice Nakamura, Guardianship Study Commission Members, Attorney General Hector Balderas, News Media Professionals, and others:

Congratulations are due to Judith Nakamura on her election by her fellow justices to be the Chief Justice of the New Mexico Supreme Court.

Chief Justice Nakamura was said by the Albuquerque Journal as being, “committed to cultivating collegiality in the judiciary and to ensuring the court system is operating efficiently.” Furthermore:

  • As [Nakamura] took the podium to address a room filled with judges from across the state, she said the courts are in a transitional period that will require cooperation. While she said she will continue to advocate for full funding of the courts, she said the future will require “the courage to take a hard look at how we operate and an openness to new ways of doing things.”
  • We need to be able to tell the public and our community,” she said, “that we are doing the best we can with the resources we have.”

At WillPowerNM we hope Chief Justice Nakamura’s exhortations to her fellow judges to have “courage” for self-examination, as well as taking a new approach, will be swiftly demonstrated to the public.

The public is ready for Chief Justice Nakamura to give instructions to the Guardianship Commission to examine past cases of the courts and their appointees wrong-doing, investigating any alleged criminality by judges or their appointees serving the public in Guardian and Conservatorship cases across New Mexico, and allow the public to speak openly and freely of their experiences under Guardianship when members of the public appear either in person or write the Commission.

So far, the Commission’s hearings and acceptance of written testimony is greatly constricted by the imposition of secrecy that the Commission has adopted. This secrecy of “not naming names” and not allowing the public to discuss their own experiences with the Judges and their appointees that control 100% of the outcome in guardianship means that the rest of the public who hasn’t been conscripted into guardianship remains unaware of the grave legal and financial dangers that could befall them should they find themselves in front a judge, facing charges of being an incapacitated person.

The biggest reason the public is so enraged at the courts over judges’ handling of guardianship cases, is because the secrecy only serves to protect the judges and their appointees from public scrutiny of the complete lack of accountability for judicial actions, evidently routinely taken, in guardianship cases across the state.

When this secrecy is breached by journalists, such as nationally-syndicated columnist Diane Dimond, and Albuquerque Journal investigative reporter Colleen Heild, the court practices of guardianship that emerge paint an extremely ugly picture of judicial abuse of power and routine cover-ups by the judges, attorneys, and 3rd party professionals involved.

Whether you are relatively wealthy, such as the Darnell family, whose guardianship of their matriarch Blair Darnell brought the atrocity of guardianship as practiced in New Mexico’s 2nd Judicial District Court to the public’s attention in Diane Dimond’s 6-part series in Nov-Dec 2016, or you are poor like Omar Ramirez, and suffer the theft of your $1.2 Million guardianship settlement fund by a well-connected, frequently appointed, private trust company of the judge’s choosing, the effect of having the courts administer your guardianship is the same: any money you have will be removed from you, your family, or whomever you’ve named to control you after you become incapacitated – and your entire life’s assets and money will be given over to whomever the judge appoints, to spend (or steal) in whatever manner the appointee wishes.

Case after case of judicial abuses in guardianship, trust, and other equity matters have been reported to advocacy group Americans Against Abusive Probate Guardianship as well as reporters with the Journal and other media outlets. The judges, their appointees, and the Commission cannot continue to blame ‘family dysfunction’ for the criminal fraud routinely committed by judges and their appointees.

Whether the courts’ victims are rich or poor, there is NO OVERSIGHT of any guardianship and the millions of dollars that flow into the courts at the beginning of a guardianship, trust or equity matter, never to be seen again.

We include Attorney General Hector Balderas in the salutation in this letter, and join with AAAPG in its call to AG Balderas to hold the judges and their appointees accountable for the laws they violate.

Crusading journalist Diane Dimond said it best this weekend in response to the tragic and completely preventable theft of Omar Ramirez’s trust fund by the court-appointed trust company, headed up by politically-connected Paul Donisthorpe:

  • Diane Dimond
  • Syndicated Columnist at Creators
  • I don’t understand why the judge in this case [2nd Judicial District Judge Nan Nash – a frequent recipient of complaints by guardianship & trust victims] doesn’t call an emergency hearing to determine whether or not [Paul] Donisthorpe [owner of frequent court-appointed Trustee Desert Trust] really has a physical or mental impairment. And if he doesn’t he needs to face a judge and explain where all that money is. The longer this is drawn out the more likely all of his other businesses will become “protected.” If Donisthorpe can’t speak to the court how about his business associates and/ or his wife? People’s lives are at stake here and they’re still no court date yet?! Where is the district attorneys office in all of this? If the inimitable Coleen Heild can figure all this out why can’t DA prosecutors get going? Worse than the crime is when the criminal gets away with it. Victims need a voice here.
  • Like ·11 · Jun 11, 2017 7:48am

Not only are the judges and their appointees lacking in any method to hold them accountable for how they steal millions of dollars from their wards, but the Commission is stacked with people who currently make their living off the existing system, and are highly resistant to “an openness to new ways of doing things,” as Chief Justice Nakamura so politely requested of her lower-court judges from across the state who had assembled in Albuquerque to see her take her oath of office.

We urge Chief Justice Nakamura to read our Message #7 from last week so she can see for herself that the very people that the Commission is (partially) comprised of, are part of the same lawyers and professionals who have been privately meeting since November 2013 in groups that are not open to the public, where lawyers receive CLE credits for attending, that are members of the Elder Law Section of the Bar, and that will benefit most from the recommendations that they have written and which the Commission has indicated it will adopt over the next few months.

We also urge Chief Justice Nakamura to review the Journal’s findings that the courts themselves have failed for years to obey their own Rules (NMRA 01-179(D)(7),(9); NMRA 12-314(C)(9),(12)) as well as state Statute’s (NMSA 45-5-303(I); NMSA 45-5-407(M)) concerning what information the public is allowed access to.

For years, the courts have refused to obey the laws and rules that require the courts to release the 1) name of the ward; 2) duration of the guardianship/conservatorship; and 3) complete case docket to the public. This information was only, and we believe only partially, made available to the public for the first time as recently as Memorial Day, May 29, 2017 through the New Mexico Court Case Lookup online application.

Prior to the May 29, 2017 (partial) release of information that should have already been available to the public, once a person was put under guardianship in New Mexico, they became a desaparecidos. Like the Argentinians who disappeared without a trace during Argentinia’s Dirty War, a person put under guardianship in New Mexico was completely ‘disappeared’ – there was no legal record of what had happened to a once-living person after their conscription into guardianship. This is shocking, and even more shocking that this was occurring because of Court-ordered action in the United States of American in 2017.

Because of the Courts failure to obey the laws they are supposed to be upholding, the public does not trust District Court (civil) judges, nor does it trust attorneys appointed by those judges. This is a perilous and grave danger to democracy, when the judges refuse to obey the laws and rules they are supposed to uphold, and this is the very danger that the New Mexico judiciary is in.

Chief Justice Nakamura, we appeal to you, on behalf of your courts’ victims of guardianship, trust, and equity abuses, to directly confront this can of worms you’ve just been handed, and allow independent, honest investigations to be initiated against any judge and/or the judges’ appointees, who have been shown to violate the law while supposedly carrying out their appointed duties. There is abundant evidence of criminal wrong-doing by judges and their appointees in guardianship, trust and other equity cases – the public needs law enforcement and the Supreme Court to recognize this evidence and act upon it.

Chief Justice Nakamura, your strong, steady and decisive leadership could change the expected outcome for thousands of New Mexicans who have been legally and financially harmed by your lower court judges and their appointees.

If anyone, including Chief Justice Nakamura, Attorney General Balderas, or really anyone with a pulse believes a detailed, thorough, impartial investigation into guardianship practices and accusations against sitting judges and their appointees is not necessary, and you believe that anyone with complaints can be referred to the Disciplinary Board or the Judicial Standards Commission, then consider the existing findings of the Dis Board and the JSC that are documented to have found:

  • It is perfectly okay for a court-appointed attorney to sell multi-million dollar properties not only without a Judge’s written order approving the sale, but against the only known written order to exist in the case, ordering the sale of only part of the property, while other parts were specifically forbidden to be sold. This sale of property against a written judge’s order was deemed 100% unapproachable and professionally-correct behavior by an attorney according to Chief Disciplinary Counsel Bill Slease, who dismissed the factually-accurate, and documented complaint against a frequent court-appointed Trustee and Conservator.
  • FYI to the public: the Chief Disciplinary Counsel is appointed by the Supreme Court and reports directly to the Supreme Court, so this is something that can be immediately address by Chief Justice Nakamura and her four fellow justices, if they choose to correct Bill Slease, or better yet, remove him and replace him with someone who has a less elastic and truer interpretation of “professional misconduct.”
  • It is perfectly okay for a court-appointed attorney to allow a dead person’s credit card to be renewed and accrue charges, for up to 11 months after the deceased’s death. It is okay for the court-appointed attorney to pay himself and his staff to pay bills for up to 11 months after a person’s death on behalf of that person, for credit cards, cell phones, email and internet accounts, magazine subscriptions, Costco purchases – all personal products that presumably no dead person could use – but according to Bill Slease, this documented & factually-correct complaint is 100% acceptable behavior on the part of an attorney and such use of dead people’s credit cards and personal accounts does not rise to the level of “professional misconduct.”
  • It is perfectly acceptable for judges to threaten parties in their courts with the loss of their inheritance should the party(ies) fail to sign a legal waiver of liability for the Judges’ appointees. This routine coercion of parties by Judges to sign-away the parties’ rights to appeal or seek justice for the theft that has occurred in the guardianship or trusts administration, has been approved by the Judicial Standards Commission who dismisses these documented complaints by form letter, without comment.
  • It is perfectly acceptable for judges to punish parties in their courtroom who have complained to the Disciplinary Board about the Judges’ appointees, by holding the parties financially responsible, and making the parties pay the attorneys who the parties complained about for the attorneys’ time spent in defending themselves from the parties’ complaints. The Judicial Standards Commission accepts the Judges retaliating against parties who have filed complaints with the Disciplinary Board by dismissing these court transcript-documented complaints by form letter, without comment.
  • It is perfectly acceptable for the parties in a guardianship case to commit crimes and engage in criminal activity that the appointed attorneys and Judges are made aware of, but nothing is done to report or refer any crimes committed in guardianship to local prosecutors. Why not? For attorneys and judges to knowingly fail to report criminal activity is against both the Attorneys Rules of Professional Conduct and the Code of Judicial Conduct, but like everything concerning even the most obvious need for accountability in guardianship, it’s never enforced, and is forgotten about.

If this message to you Chief Justice Nakamura and Attorney General Balderas does not cause you to launch such an investigation to review how and why so many New Mexicans are reporting collectively millions of dollars missing from their accounts that the courts and their appointed attorneys have exclusively controlled, with all information kept sequestered and unavailable – even to the members of the Wards’ families, much less the public as required by law – then you should immediately resign from your positions as public servants.

Failure to take decisive leadership positions, and launch a thorough, independent investigation that returns money to the victims – not fills the pockets of attorneys with millions in legal fees as has so often been the case in the past (think Doug Vaughan ponzi scheme and court-appointed Trustee Judith Wagner who after taking out her attorney fees, returned 4.67 cents on every $1 dollar Wagner “clawed back” for victims), would show the public that you will do nothing to reform guardianship, reinforcing the public’s already held belief that it will just be the usual practices in guardianship, continuing onward, just like in the past.

You, Chief Justice Nakamura and Attorney General Balderas – you individually, and especially together — have the power to change New Mexico for the better.

Will you use your power to help the people of New Mexico? Or will you use your power to protect yourselves and the judges and their appointees in the lower courts who have stolen from the vulnerable and exploited those who thought judges and attorneys could be trusted?

Your choice.

We urge you to choose to support the people of New Mexico as your oaths of office require. Please be the change New Mexicans are literally dying for.

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WillPowerNM has been formed to support and inform each Member of the Commission in their work over the coming weeks and months by preparing and releasing regular email information in a format similar to this weekly message and by establishing and maintaining a publicly accessible and widely promoted web site on the Commission’s important study effort.