Lay Judge Charged With Ethics Violations
A Vermont assistant judge has been charged with violations of the Canons of Judicial Ethics relating to his dealings with an elderly relative.
In approximately October, 2009 Katherine (“Kay”) Tolaro, who is Respondent’s father’s brother’s second wife, moved into Respondent’s home in Westminster, Vermont. She was 82 at the time and showing signs of dementia.
The charges allege misconduct both before and after Ms. Tolaro’s death.
Perhaps the most unsavory charge
On July 31, 2015 Respondent filed a manifestly implausible claim against Ms. Tolaro’s estate for $833,292.51. Among other things, Respondent’s wage calculation left only 4 hours per week for Respondent to work, sleep or do anything other than care for Ms. Tolaro. Given that he was employed at the time, that is not possible. Asserting such a manifestly unsupportable claim does not comport with high standards of integrity and candor expected of judges by the Judicial Code.
He also is charged with giving “not entirely truthful” testimony in the related probate proceeding described below.
Seven Days has a detailed story on the situation and the history of so-called Side Judges.
Paul Kane filed a motion to try to avoid testifying in Windsor County Probate Court, but a judge ordered him to talk. As soon as he took the witness stand last November, it was obvious why he’d been reluctant. For 90 minutes, an attorney grilled Kane about whether he’d bilked an elderly woman with Alzheimer’s disease of roughly $500,000.
Brattleboro attorney Jodi French asked Kane why, after the ailing Catherine Tolaro granted him power of attorney, he purchased an $180,000 annuity with her money and named himself the beneficiary.
Under French’s questioning, Kane claimed that he did so with Tolaro’s interests in mind…
Despite his apparent discomfort throughout the hearing, Kane knows his way around the courtroom. In fact, he’s a Windham County assistant judge who was elected two years ago. But like most of Vermont’s 27 other assistant judges, who advise regular judges in civil and family court cases and occasionally preside over minor cases, Kane does not have a law degree.
Nonetheless, attorneys in the Tolaro estate case say Kane, 63, may have flouted laws and regulations when he converted the funds of the elderly woman he called his “aunt.” They are considering whether to refer the case for further investigation to the Department of Financial Regulation, a state agency that regulates bank transactions, once the estate is settled.
Kane has claimed that any irregularities in his handling of Tolaro’s estate were due to mistakes and poor understanding of relevant laws. He says he is the victim of “character assassination.”
As to Side Judges
The ongoing case is the latest controversy involving assistant judges, colloquially known as “side” or “lay” judges, who retain an antiquated role in the Vermont judiciary despite repeated attempts to strip them of power.
In recent years, side judges in Vermont have been caught directing taxpayer money to their own charities, shoplifting from local stores, doling out bonuses to themselves from public budgets and accusing each other of assault.
Those embarrassing episodes, along with concerns that side judges lack legal training and operate with almost no oversight, have fueled arguments against preserving their positions.
Their harshest critics tend to be traditional judges, some of whom believe that “these people aren’t really adequately trained and prepared, and they ought not participate on important decisions in people’s lives,” said Vermont Law School professor Peter Teachout, who has consulted for the Vermont judiciary. “A prevailing view — not a unanimous view — in the judiciary is that they couldn’t be relied upon to perform even a limited judicial function. There’s been clear hostility to allowing lay judges to have any legal function.”
VTDigger.com reported on the recently-filed ethics allegations.
The events leading up to the complaint filed against Paul Kane, of Westminster, began in October 2009, when Kane moved into the Westminster home of his uncle’s second wife, Catherine Tolaro, who was 82 at the time and showing signs of dementia. That same month, Tolaro executed a “Limited Power of Attorney For Finances” granting Kane and his wife the ability to obtain financial information on her behalf. One month later, Tolaro executed a will that gave 30 percent of her assets to charity and distributed the rest to six beneficiaries, one of whom was Kane. At the time, Tolaro’s net worth was $767,500. Over the next six years, Tolaro’s estate dwindled away, as Kane issued a pair of loans and made claims against the state for the costs of Tolaro’s care.
In July 2015, Kane filed a written statement of claim against Tolaro’s estate, claiming $833,292.51 was owed to him, including $722,740 for caring for her at $18 per hour, 159 hours per week (a week contains a total of 168 hours) for 135 weeks. This amounted to around the clock payment except when a home care nurse was there for two to three hours three times per week.
The claim also included $20,925 for 31 months of room and board calculated at $675 per month, $7,800 due to (Kane) and his wife for financial and property management and $31,827.51 for “expenses advanced to the estate by Paul Kane from April 21, 2012 to July 31, 2015.”
(Mike Frisch)