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Judge in guardianship case denies claims he is biased

ALBUQUERQUE, N.M. — Albuquerque state District Judge Alan Malott this week shot down a recusal attempt by a woman seeking a new judge in her 4-year-old lawsuit against her mother’s former corporate guardian and conservator.

Judge Alan Malott

Malott ruled that attorneys for Leonie Rosenstiel presented no evidence to show that he couldn’t act impartially in the case and should recuse himself.

Rosenstiel is suing the firm Decades LLC on behalf of her mother, Annette Rosenstiel, who was deemed mentally incapacitated and placed under a court-approved guardianship and conservatorship beginning in 2003.

Rosenstiel’s attorneys contended the judge’s participation earlier this year on two discussion panels about guardianship issues would cause a reasonable person to believe he was biased and unable to fairly and appropriately rule on Rosenstiel’s lawsuit.

Rosenstiel, whose mother died in 2012, alleges that the company mismanaged her now-deceased mother’s finances and property, failed to protect her interests, and negligently and improperly handled her mother’s affairs. The case is set for trial in October.

Rosenstiel’s attorneys had questioned, in part, the propriety of Malott’s appearance April 5 on a panel that included members of the guardianship industry. The panel included Greg MacKenzie, an attorney who has represented Decades in Rosenstiel’s case. The luncheon discussion was sponsored by the Albuquerque Lawyers Club.

The panel topic was titled “The Truth Underlying the Reporting on Guardianships/Conservatorships in New Mexico,” and Rosenstiel’s attorneys contended that the explicit purpose of the discussion was to address articles in the Albuquerque Journal about matters “that included Defendants’ (Decades LLC) performance as a guardian or conservator.”

The recusal motion also cited Malott’s March 22 appearance at a public Town Hall on guardianship issues sponsored by the Journal and KANW-FM. Malott was the court’s representative on the panel.

Decades, in its response, stated that Rosenstiel’s lawsuit was never discussed during the Albuquerque Lawyers Club presentation and MacKenzie didn’t organize the event. Rosenstiel’s motion is “filled with suggestion and innuendo, yet fails to present sufficient evidence that would require Judge Malott’s disqualification,” stated Decades’ response.

Malott in his ruling also stated that there was no evidence presented by Rosenstiel’s attorneys to support the conclusions that he was biased.

He pointed to “counsel’s self-serving conjectures that merely participating in these unrestricted and multi-partisan public events establishes improper ‘ex parte’ communications and requires recusal.

“Holding otherwise would discourage a judge from participating in both law-related educational activities and extra-judicial community activities,” he wrote. “It would also discourage the development of a better public understanding of the way courts function and the court’s role in our society.”

Malott added that the parties and their attorneys are “reminded the appropriate place for the trial is in the Bernalillo County Courthouse, not the ‘Court of Public Opinion.’ ”

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