The Government Remains Shut for Civil Litigants Fighting the Man
Photos get shared instantaneously with the world and Twitter trolls stampede while salacious stories spread like wildfire online but for civil litigants fighting The Man the wheels of justice spin slower than a giant ice disk floating in the Presumpscot River.
At least that has been the case for the family of William Dean, for example. For them justice is moving like molasses going up hill in winter. For them the government shut down in 2012 when the Maine Department of Health and Human Services swooped in and took over Dean’s affairs for six months and then swooped out leaving him homeless, heartbroken and impoverished. Family members who were willing and able to serve as Dean’s guardian in 2012 while he was hospitalized are left still trying to clean up the mess.
As Dean’s “temporary” Public Guardian the Maine Department of Health and Human Services liquidated his estate for no apparent good reason, recklessly sold off a cherished seaside summer cottage in Owls Head, and rendered the family home in Rockland uninhabitable due to flooding because the temporary Public Guardian failed to winterize it. The temporary Public Guardian also had Dean’s beloved cat named Catarpillar euthanized and sold Dean’s treasured vintage Cadillac.
The liquidation of Dean’s personal property was carried out by a guy hired by the temporary Public Guardian. Without any written contract or insurance, this one guy, David Thistle, was given carte blanche to haul off 10 truckloads of Dean’s stuff to sell. In the summer of 2017 following a trial Thistle was found liable by a Knox County jury for conversion. It turns out the temporary Public Guardian’s guy sold Dean’s stuff but kept thousands of dollars for himself. Prized possessions and family heirlooms are lost forever. After the trial Thistle skipped town without paying the judgment amounts owed leaving Dean’s family holding that bag, too.
The law creating the Public Guardian is unique to Maine. It allows the Department to take over the affairs of incapacitated adults, and if there’s an “emergency” a social worker from the Department can petition the probate court to be appointed in an ex parte proceeding without lawyers, as it did in Dean’s case.
The so-called “emergency” that prompted the social worker to be appointed temporary Public Guardian of William Dean in September of 2012 was an overdue property tax bill of five or six thousand dollars owed to the Town of Owls Head on his cottage — a stunningly beautiful piece of property that rents out for $3000 a week during the summer. At the time Dean was a voluntary patient of the Dorothea Dix Psychiatric Hospital in Bangor and the tax lien was not set to foreclose for several months. Family members offered to pay the property tax bill but the temporary Public Guardian refused their offer. No attempt was made by the temporary Public Guardian to get an exemption from the Town of Owls Head despite a policy to grant one under these circumstances. No effort was made to finance the payment of the small property tax bill using equity in the mortgage-free cottage worth hundreds of thousands of dollars. The kicker is that the estate incurred a capital gains tax of about $35,000 as a result of the sale of the cottage.
Incurring a $35,000 capital gains tax to pay a $6,000 property tax makes no sense — nor does most of what the temporary Public Guardian did in the six months it “managed” Dean’s estate and yet the litigation marches on like a modern day Bleak House.
On January 18, 2019 the United States District Court certified to the Maine Supreme Judicial Court the question of whether the bond the State of Maine has been paying for for more than 35 years — in 2018 the premium was $24,446 — is useless in protecting incapacitated adults who suddenly and surprisingly find themselves a ward of a “temporary” Public Guardian gone rogue. The insurance company that sells the bond claims it has sovereign immunity.
The Maine Supreme Judicial Court will likely recognize the fact pattern of the tragic story of the Dean family because the issue whether the insurance company that provides the statutory bond for the Public Guardian is immune from suit was raised in an earlier decision but not decided. Now that question will be decided but other questions will remain and the case eventually will go back to federal court where if a motion to dismiss filed by the insurance company is fended off, a bigger, longer motion for summary judgment will likely ensue after months of expensive discovery. The motion for summary judgment will take months to be resolved and depending on the decision thereafter could be the subject of another appeal.
Imagine an insurance company paid public dollars to bear no risk and incapacitated adults at the mercy of a temporary Public Guardian.
Whether a surety has sovereign immunity presents an interesting existential and legal question about the justice system and what constitutes fundamental fairness, unless of course its your family being taken for a ride for seven or eight years. If its your family seeking closure and justice the intellectual novelty of the litigation has worn off. Maybe its time instead for the state to apologize to the Dean family, make amends, and move to actually protect incapacitated adults.