Due Process – Guardianship Proceeding


Ex parte Joann Bashinsky, [Ms. 1190193, July 2, 2020] __ So. 3d __ (Ala. 2020).  The Court (Mendheim, J.; Parker, C.J., and Bolin, Wise, Bryan, Sellers, and Stewart, JJ., concur; Mitchell, J., recuses) issues a writ of mandamus to the Jefferson Probate Court directing the Court to vacate orders appointing a temporary guardian for Ms. Bashinsky and disqualifying her attorneys.  Ms. Bashinsky’s mandamus petition contended that the probate court lacked personal jurisdiction over her because she was not properly served with the emergency petition and that her basic due-process rights were violated because the probate court disqualified her attorneys and did not allow her the opportunity to retain new counsel so that she could be heard in the October 17, 2019, hearing on the emergency petition.  Because Ms. Bashinsky’s arguments raise issues of procedural due process that could render the probate court’s underlying judgment on the emergency petition void, the Court concludes “a mandamus petition is an appropriate method of seeking review of the trial court’s judgment as to those two issues.”  Ms. *28.

The Court rejects the respondent’s arguments that an emergency situation existed which excused lack of notice to Ms. Bashinsky.  The Court applies the  definition of the term “emergency” in the edition of Black’s Law Dictionary in use at the time the AUGPPA was enacted in 1987 provided: “A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity.  Emergency is an unforeseen combination of circumstances that calls for immediate action.”  Black’s Law Dictionary 469 (5th ed. 1979).  Ms. *42.

Although the Court concludes that notice to Ms. Bashinsky’s lawyers of the emergency hearing to appoint a temporary guardian was sufficient notice to her, because “the probate court disqualified Ms. Bashinsky’s attorneys at the outset of the October 17, 2019, hearing on the emergency petition and [] she was not afforded the opportunity to retain new attorneys or to present any evidence or question witnesses at that hearing.”  Ms. *52.  The Court concludes “Ms. Bashinsky’s basic due-process rights were egregiously violated, as the probate court treated the proceeding like an ex parte hearing even though Ms. Bashinsky was present.”  Ms. *52 (emphasis in the original).

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