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New state rules cause ‘confusion’ in court

FOR THE RECORD: This story should have said that a District Court bailiff in Roswell informed the reporter that Judge James M. Hudson of Roswell wasn’t available for comment after the hearing.


Copyright © 2018 Albuquerque Journal

ROSWELL – Despite a new state law and court rules providing for open hearings, state District Court officials ejected a Journal reporter Monday from a courtroom minutes before a hearing sought by a woman who questions how a court-appointed professional guardian is handling her adult son’s case and finances.

After the reporter had left the courthouse in Roswell, the judge reversed himself and opened the guardianship hearing, apologizing to those in the courtroom.

Elizabeth McCutcheon and her 32-year-old son, Bryan, who suffered brain damage a decade ago, had requested the hearing in June.

They allege that the guardian company, CNRAG Inc., has filed inaccurate annual reports with the court and failed to file annual financial reports or give a comprehensive accounting of his income and expenditures. They also seek the court’s review of the guardianship arrangement, because some circumstances involving Bryan McCutcheon have changed in recent years.

CNRAG’s owner, Roxanna Gates, told the Journal after the hearing that she has complied fully with the requirements imposed on court-appointed guardians and denied any mismanagement in the case.

She said that as the representative payee for Bryan McCutcheon, she isn’t required to file financial reports with the court for McCutcheon, whose guardianship services are paid for by the state Office of Guardianship, which handles services for low-income clients.

The judge set a follow-up hearing on the merits of McCutcheon’s allegations for Oct. 31.

Before the start of the proceedings on Monday morning before Judge James M. Hudson of Roswell, a Journal reporter sitting in the courtroom was told by bailiff Tim Foster that such hearings were “sequestered” and, thus, closed to the public. The bailiff first asked the reporter to identify herself as she walked in the door.

When the reporter showed the bailiff a copy of new court rules requiring open guardianship hearings effective July 1, Foster told the reporter she had to leave anyway. When the reporter asked to speak to the judge in court to object, Foster denied the request and said he had already consulted the judge.

Foster insisted the reporter leave and said she could talk to the judge after the hearing.

The reporter left the Chaves County Courthouse to contact the Administrative Office of the Courts via cellphone, because the public isn’t allowed to take cellphones into the courtroom.

Later, in an interview, Elizabeth McCutcheon said that during the 25-minute hearing, Hudson apologized and then opened up the courtroom.

“According to Judge Hudson, there was miscommunication with his staff and confusion over whether the hearing today was sequestered,” Barry Massey of the AOC wrote in a subsequent email to the Journal.

“After you left,” Massey told the reporter, “he (the judge) went on the record and took responsibility for the problem. He had his bailiff go out and call the case again so anyone else who wanted to appear could do so, but apparently you had left.”

New Mexico’s judges who hear guardianship and conservatorship cases have been trained and should be aware of the changes in the law, Massey’s email said.

Opening what have been historically closed, sequestered court hearings in guardian and conservator cases has been considered a cornerstone of a legislative reform package approved in February. Legislative leaders and judges themselves have said they hoped such transparency would help improve accountability in the much-criticized system.

The state Supreme Court recently approved rules implementing the new law, further detailing how “all courtroom proceedings shall be open to the public” unless the judge follows a set procedure and articulates “the overriding interest being protected.”

Under court rules, judges are to hold public hearings, giving the parties time to file motions and replies, before ordering a courtroom closure.

Massey said the judiciary held two sessions on guardianship changes during the annual judicial conclave in June for judges. Written information about the new system has been distributed to the state’s judges, and two Albuquerque district judges have conducted continuing education about the subject at lunchtime meetings that judges can attend in person, by phone or video teleconferencing.

Although Foster earlier had said the judge would be available after the hearing, he told the Journal reporter after the hearing that judge, who was about to hear another case, was not available for comment.

Bryan McCutcheon, after the hearing, said he was disappointed in Monday’s events.

“I’m like, what? It (hearing) is open.”

He posted a notice on his Facebook page the night before saying, “Dear residents of Roswell NM. I would like to invite you to the Roswell courthouse.tomorrow morning for my ‘status hearing’ at 7:30 a.m. thank you.good nite.”