AZ PROBATE JUDGES MUST LEARN FROM COOK COUNTY PROBATE CROOKS

Probate judge can't be questioned


Nobody can question retired Commissioner Lindsay Ellis about her decision to give select attorneys a sneak peek at her plan to approve the draining of an elderly widow's life savings.

Superior Court Judge Robert Budoff has ruled that Ellis can't be hauled into court and asked why she decided to send an advance copy of her decision only to the people who stood to benefit from her ruling. Can't be asked just how cozy her relationship was with one side, the side that wound up with most of Marie Long's money. Can't be asked, well, anything.

She has “absolute immunity”

“Not only Judge Pro Tem Ellis, but also her judicial assistant, court clerk and other staff are protected from compelled testimony relative to any communications that may have occurred with any counsel in these proceedings, ex-parte or otherwise,” he wrote, in a ruling made public this week.

But Budoff noted that evidence can be obtained elsewhere and he rejected Ellis' request that he call off his inquiry into her actions.

Ellis' neutrality has long been questioned in the case of the 88-year-old widow who went from having $1.3 million to nothing after suffering a stroke and coming under the protection of probate court. Probate's presiding judge at the time, Karen O'Connor, twice rejected requests last fall to remove Ellis from Marie's case, claiming there was no evidence of bias.

Then came the remarkable revelation that Ellis, through a judicial assistant, in March sent select attorneys an advance copy of her ruling that they and their clients were justified in collecting hundreds of thousands of dollars in fees from Marie's trust. Ellis' ruling also lambasted attorneys for Marie and her sisters, blaming their “hateful and unsubstantiated attacks” for the run-up in fees.

It would be May before the Marie's attorney would learn of Ellis' back-channel communiqué, when attorney Brenda Church finally disclosed the e-mail and her reply suggesting several factual changes that Ellis incorporated into her ruling. Records show that Ellis' ruling was worth more than $330,000 to Church's law firms alone.

The revelation of Ellis' improper conduct prompted then Maricopa County Presiding Judge Barbara Mundell to lob the case to Budoff, who must determine whether Ellis violated her ethical obligations and, if so, whether her ruling approving the fees should be tossed out.

Budoff, in his ruling, rejected Ellis' contention that he has no authority to intervene, but he agreed with her that she can't be questioned because she has judicial immunity.

That decision shouldn't pose a huge setback to Marie's attorneys who likely wouldn't have been allowed to question Ellis about what she was thinking anyway. But it would have been nice to ask her if she'd had regular chats with the favored attorneys -- Church, the attorney for Marie's trustee; Brian Theut, who was Marie's guardian ad litem; and Jerome Elwell and Lauren Garner, the attorneys for Sun Valley.

After the e-mail came to light, I filed a public-records request with Superior Court, to see if Ellis and any of the favored attorneys had had other secret communications over the five years of this case. The court gave me eight recent e-mails – seven of them routine and one Jan. 6 note from Garner, asking Ellis to lunch. (At the time, Garner's request for approval of $21,000 in fees was pending before Ellis, with a second $38,000 request to be filed a few days later.)

Court officials say they don't save old e-mail and that it would cost at least the newspaper $22,000 to $46,000 to retrieve the archived material from the county's back-up system.

Translation: don't hold your breath waiting to know whether Ellis's ex-par-tete-a-tete was a one-time deal or a regular thing.

While the favored four and their attorneys continue to point to Ellis' ruling as proof they were justified in collecting most of Marie's money, the old lady's attorneys have asked for a new trial, laying out a pattern of treatment in which Ellis sided with and even lauded the attorneys and fiduciaries who wound up with all of Marie's money while ignoring their repeated requests to stop the bleeding.

In the meantime, they've asked that Marie's money be returned to her now, while she can use it, as the court ponders whether more than $800,000 in fees is appropriate.

Budoff will hear their motion on Sept. 2.

By then, Marie will be 89.

Editor's note: Roberts' sister, Appellate Court Judge Ann Timmer, chairs a committee that is reviewing Probate Court practices. The Republic is disclosing the relationship to avoid any perception of a conflict of interest.

(Column published July 24, 2010, The Arizona Republic)