This is Bloomberg Law with June Brusso from Bloomberg Radio.
Okay, Towey family, big smiles.
Everyone and a one two three.
Michael, Michael, come on down here and get in the next one.
You threaten my son. You threaten me.
You so much is crossing to downtown.
You will be sorry.
I'm in a prayer group with a DA I'm a member of the NRA.
And I'm always packing.
In the movie The blind Side, Michael Orr's story has a happy fairytale ending. He's part of the Towey family who adopt him.
We want to know if you would like to become part of this family.
Kind of thought I already was, But Or now says that was fiction. Though the Tuys still refer to him as their son, they never adopted him. Instead, Sean and LeeAnne Toohey placed him in a conservatorship, which gave them total control over his legal rights, like the ability to enter into contracts and make medical decisions. That conservatorship started when he was eighteen years old and remains in effect today.
Nearly two decades later. Or is suing the Tooyes to end the conservatorship and to get an accounting and his share of money from the best selling book in film based on his life. The Twoeys have denied any wrongdoing and say they've treated or like a son. Joining me is an expert in conservatorships, Jonathan Martinez, the Senior director for Law and Policy in the Burton Blatt Institute at
Syracuse University. What's the most shocking thing to you about this or conservatorship or isn't it shocking at all?
It's shocking, but not surprise what I've read about Michael or what he has said about his situation. I just literally recently read the blurb from his memoir where he said he was told it was a quote unquote legal conservatorship, but told it was the same thing as becoming adopted or becoming part of the family. Tells me that he didn't know what he was agreeing to, that he didn't understand what a conservatorship is, and maybe the family didn't
understand what a conservatorship is, and that's the problem. Far too often, conservatorship or guardianship as it's called in other states, is done as a matter of convenience to make things easy, when what it really does, by definition is removed people's rights. Guardianship and conservatorship, and there is no problem with either one of those when they're needed. By definition, takes your rights away and gives them to someone else. And when we say we're doing that because it's the same thing
as an adoption, it's not. Or if we're doing it because it's easier than doing something else, it's not. Rights are really precious things. The right to choose where and how and with whom we live are the things that make us who we are. So when I hear something like I sign the paper because I was told it was the best way or the easiest way, or I was told it was the same as it's shocking, but it's not surprising because I've heard it many many other times,
from judges, from lawyers, from families. It's just easier, and it shouldn't be easy.
To remove, right, So explain the difference between adoption and conservatorship.
The adoption, one person becomes the legal parent of someone else, and parents have certain rights when it comes to their children. But when you adopt an adult, you don't get the right to override their decisions. You just become known as their mother or their father for legal purposes. If you adopt a minor. That is very different if you adopt
a seventeen year old. Michael Orr was over eighteen, so they would not have gained if they had adopted him, the right to make decisions for him or manage his money without him having the right to say yes or no. In a conservatorship or guardianship, what happens is a person becomes, in a very real sense, the other person. Legally, if I'm your guardian, I get the right to make decisions for you. I'm the final decision maker. It's my say so,
whether or not you like it. If I'm an adult and my mom is still my mom, she doesn't get the right to make decisions for me if I don't want her to do so. But if my mom was my guardian or my conservator, she would have the right to do that even if I didn't want her to.
The two weeys haven't filed an answer yet to the complaint, but in response they've said that lawyers told them at the time they had to use a conservatorship, not an adoption because Or was eighteen and also that but the conservatorship was the quickest way to satisfy the NCAA's concerns. That the family was just steering him to their alma mater, oh Miss. But Tennessee law says eighteen year olds can be adopted. It just requires the sworn, written consent of the person sought to be adopted.
I wasn't there, I didn't hear the advice given. But once again, this is hardly surprising. I've heard lawyers give the advice to seek a guardianship or seek a conservatorship because it's easier, because it's more convenient, because it's the fastest way to do things, when what it really does
is remove people's right. What you've said about Tennessee law, that's also not surprising because adults can be adopted anywhere, So it doesn't surprise me that someone would receive the advice to take the quickest path, and if in their minds the quickest path was conservatorship. Again, it is shocking that we in the year twenty twenty three, we'd be giving people to remove someone else's legal rights because it's convenient. But that seems to be exactly what happened, and it happens a lot.
For a conservatorship, Tennessee law requires evidence of a disability, and there was no evidence of a disability listed for or should a judge have caught that.
There were stuck once again in the theory of a conveyor belt, where judges will say, if no one objects, I'll sign this order. And no one objects, But the answer to your question is yes. I speak with judges a lot. I've lectured to judges, I have presented judicial conferences, and here's what I tell them about guardianship. I tell the judges that you are the true guardians of the law unintended. You have to make sure before you sign that paper that everything is in order. You would not
enter an order that wasn't legally appropriate. In a different kind of case, you would not convict someone of a crime unlady, there was proof beyond a reasonable doubt. In fact, when someone pleads guilty, the judge has to hold a hearing to make sure that that lee is knowing and voluntary, and if the judge doesn't think it is, the judge
has an obligation not to expect it. So judges in guardianship cases, even when no one objects, in my opinion, have an obligation to make sure it's still appropriate for guardianship or for conservatorship. I tell judges this. I tell people this all the time. The most important question we can ask before we agree that the guardianship is right is this one. What else have you tried? Because in ninety eight percent of cases, yes, a person in a coma, of course needs a guardian. A person at the end
stages of dementia, of course needs a guardian. I understand. But a whole lot of the time, how do you know that this is your only option? That a person truly cannot make decisions or manage their own lives until they've taken the time to examine and explore whether it's something else that would preserve the person's rights might help. There are recognized alternatives that could help in a situation. They might help, they might not. If they wouldn't help,
then guardianship and conservatorship are fine. But given the rights at stake are the rights that you and I and every American should hold, precious freedom of speech, freedom of association, and freedom to vote, freedom to marry, all of these things that make us who we are, they're at stake in a guardianship or conservatorship, And given that, shouldn't a judge take that second to say, wait a second, I know that everyone agrees that they want this, but is
this legally appropriate? I think that is the least the judicial system can do in a case like this.
When a defendant pleads guilty, the judge asks, are you pleading of your own accord if you take the drugs? Blah blah blah. Do they ask the prospective war do you understand what you're giving up here?
I have seen these case is done entirely on paper. The quick anecdote I can give you is there's a phenomenon called a ghost guardianship where a person winds up in guardianship without a hearing, sometimes not even notice. In some states, that happens that we not only don't have an inquiry, we don't even have the barest minimum of an inquiry where even if the law says you're entitled to notice as an opportunity to be heard. I have done research where I have found have rural cases with
even that minimum didn't happen. So yes, and when asked, I have heard judges say I've heard people say, well, we're just trying to make it easier. This is a parent who is trying to take care of someone, or this is a caring friend who is trying to do much best for someone. And I understand that the motivations try to be helpful, But again, think about what's at stake. Shouldn't we have the barest minimum to make sure that such an extreme remedy is right before.
We do it.
I think I know your answer to this question, but I'm going to ask you if this shocks you. In Oors case, the judge who approved his conservatorship told Bloomberg that no case papers ever crossed his desk after the initial approval. So the conservators never filed annual accountings or fiduciary or other court papers for nearly twenty years. Does that surprise you?
No. I have a case very recently in another state where we terminated the guardianship after over ten years because no reports that have been filed. And by the way, the person have been putting guardianship in the first place without such an inquiry and without such a hearing. So no, of course it happens. And here's are I'll be a little sympathetic to courts. They are overwhelmed. They have lots of paperwork they have to look at, they have lots of cases before them, So it may be that they
don't notice that a report isn't filed. But on the other hand, is this their obligation to notice? If the laws says you must file annual accountings, and I know it does, it doesn't ever say, God, I've booked up. Why does it say that if it's not being done. It is there to create that important safeguard. It is there to create a backstop to make sure that at
all times guardianship remains appropriate, that conservatorship remains the right option. Well, if we're not looking at the papers, we're even looking for the papers, where is that safeguard?
Or is seeking end the conservatorship and to require the twoes to account for their actions? But an attorney representing the twoe'es said they plan to enter a consent order to end the conservatorship. What happens then to Ore's request for an accounting? Will there be an accounting?
I don't know. You can say you hope so, But I can give you a more concerning issue. If they're willing to enter a consent order now that a conservatorship wasn't required, doesn't that mean they know he doesn't need one? And the question I would ask was when did they know and how long have they known? And haven't they always known? That's what I mean about rights being precious. It was the easiest thing to do to put him in conservatorship, But that easy thing removed Michael Orr's rights.
And if it's now so easy to enter a consent decree to remove it, why were his rights removed in the first place. Why do we have such a cavalier attitude about a person's fundamental legal rights that we can say at the drop of a hat, oh, I'll remove it. I'll remove the conservative ship, just like we said at the drop of a hat, I'll remove those rights. Would you want that to happen to you? Would you want your rights to be so fragile that they could be taken away at the drop of a hat and restored
at the drop of a hat. Shouldn't they be something that is respected and protected the same way they's supposed to be?
So he was in the fell for years and years and made quite a lot of money. Any contract that he signed. Would they have had to sign the contract for him?
Once again, obviously I wasn't there, so I can't answer what was done, and I can't answer how his conservatorship specifically was set up. But if it is a standard the conservatorship, which essentially removes person a's rights and gives them to person B, then yes, the legal conservator would stand in the place of the person and would be ultimately the one who had to approve any legal documents. That's the way it should work, the way the laws
and to be written. I have no idea what happened in his specific situation.
And conservatorships in general, do they go on until someone makes a move to put a stop to them.
Yes. I tell people this all the time. When you apply to be your child or your loved ones guardian, our conservator, what you're really doing is inviting the court into your life for the rest of that person's life because you're suppose to give those reports, you were supposed to do all of those things, and that guardianship or conservatorship will continue until it is ended by you or
by someone else, or by the person. You have invited the court and the court system into your life forever until it's over.
So he's asking for an accounting and also for compensatory and punitive damages for their misconduct. Does that seem like an uphill battle?
I've never heard of a person receiving damages because of a conservatorship problem. I think it's an interesting concept. I'd certainly like to see how it plays out. I haven't read the lawsuit, so I can't tell you what theory they're using for it. But if wrong was done, and I have no idea if wrong was done, but if this person was genuinely wrong, then shouldn't he have a right to have an accounting both fiscal see how much money was misused, and you know, emotional to have them
be accountable to him if they did wrong. I think that's why we have courts systems, and I hope the answer is found.
Did the Britney Spears conservatorship bring light to this area at all?
Absolutely? Absolutely it did. The Free Britney movement was huge on castail light on the exact issue. I was talking about that fundamental nature of guardianship and conservatorship and that question. I said, we need to ask what else can we try? Think about Britney Spears for a second. This is a multi multi multimillionaire. If Britney Spears if had a disability that prevented her from managing her own life, the question would be where those disabilities are and what impacts they caused?
Did they make it impossible for her to manage her money well given the resources she had? Instead of removing her right to manage her money, couldn't they have set up a system where she had an accountant or an advisor or a fiscal manager to help her do that rather than entirely removing her right to do so. If the problems were around relationships, what therapy have been a better option rather than jumping to removing her right to
decide what to do with her own body. So of course it's shone a light on that, and I hope those conversations continue because while the Britney Spears matter was going on, people were paying attention, people were asking those questions. You know, people I work with wanted to know, shouldn't I be treated the same way as Britney Spears was. In other words, there are lots and lots of people who aren't pop stars who have lost their rights. Britney
got them back after a very long time. Other people are asking why can't I have that same opportunity as a pop star. So the short answer to your question is yes. The longer answer is I hope it continues, It's a conversation we need to have here.
The two weis are saying through their attorney that Or attempted a shake down, and they have so much money they don't need anymore. What kind of excuses do you ordinarily hear in these cases?
I mean the vast majority of guardia it's coming involved money. I mean we hear about ones that do. We hear about Britney Spears, We hear about Michael Or in New York, we hear about the artist Peter Mack. But the vast majority of cases, the people who don't have that kind of money. The people I represent and work with aren't rich.
They're just people who've lost their rights. So the comeback usually is, this person needs a guardian, needs a conservative, this person has a disability to this person has this or has that, or needs this or needs that. It's for their own good. Those are the things I hear. I mean, the Michael Or case, the Britney Spears cases are obviously higher profile because they involve famous people. They're
obviously higher profile because they involve people with money. But I will tell you that ninety eight percent of the time, no, it's just someone who someone meant well and thought they needed something that maybe they didn't need. And what the argument comes down to is whether a person truly needs a guardianship of conservativeship or ever did the heartbreaking cases
where a child is competing against the parents. A young woman I've represented named Jenny Hatch who was the first person to defeat a petition for guardianship a trial because she uses an alternative called supported decision making. It's horror family apart because her family thought she needed a guardian she didn't. Ten years later, she is still living free and showing the example of what can happen when people
are empowered to make their own decisions. That's a very long way of saying which people do things differently, celebrities do things differently. The reasons we hear in a Michael Orr case are very different and the reasons we hear in most cases. And I hope cases like Michael Orr and like Britney Spears shine a lights that help all those other people, the ones who ask what about me? What about the situation in my life? Who's going to pay attention to that when that happens, will have a new day.
It seems like people are put into guardianships a lot of the time, time quickly and by default. How difficult is it to get out of a guardianship for the normal average person?
Hard, It takes time is usually usually the way out of a guardianship or a conservativeship. And I keep us two terms of changeably, by the way, they essentially mean the same thing. It just means what they call it in that state in California and Tennessee where Britain's There's and Michael Orrar they refer to it as conservativeship. Most other states call it guardianship. When you hear those terms, just think one person giving the legal right to make
decisions for another. Usually the way out of those is you have to show that you have quote unquote been restored to competency, that you can now make decisions for yourself and manage your own life for yourself. Well forever, that term restored has kind of been viewed as cured, and if you have an intellectual disability, if you have a development disability, down syndrome, intellectual disability, servebral palsy, you
don't get cured. So the thought was if you went into guardianship or conservatorship at eighteen you're going to be into the rest of your life. Some of the ways that we have used to work with people, it's to show they never should have been in the first place, that they've always had competency, or they've developed strategies and support systems that give them that competency. But man, that takes time. You have to have, usually an expert willing
to testify that this person can do it. Sometimes it takes money. And again for the people I work with and so many other people work with, that money isn't there. We have to find other ways. So I tell people the best way out is never to go in in the first place, and if you want out, you have to hope for a lot of good fortune and an understanding judge.
What seems really odd to me about this is that the conservatorship has been in effect for nearly two decades and the two'es never sought to unwind it.
That's the biggest question for me. If they were just never going to bother unwinding until it got spotlighted, what does that say about the attitude towards this person's right. They didn't think about it. If we give them the best of motivations, they just didn't think about it. They thought, you know, this is what's good for him, or we never got around to unwinding it because no one ever
asked for me. Every guardian and every consertor's obligation and this is written in most walls, by the way, is to help the person, not just make decisions for the person, but maximize that person's opportunities to make decisions, help that person regain abilities or gain the abilities. And then if the person has done it, if there comes a time when the person no longer needs it. And certainly that sounds like the family knew the situation in Michael Lare
because they're so willing to get rid of it. Well, when you realize it's not needed, shouldn't your obligation to be to go back to that judge you signed the order in the first place and say, good news, Judge, I did my job. Now you can fire me. If we looked at guardianship of conservoship that way, you'd have no bigger fan than me. Because some people do need that level of assistance until they get it. Some people
do need extra support until they get it. What a great system it would be if we would be able to give people that support, and when they no longer needed it to say I did my job, you can fire me.
Being a lawyer trying to terminate these conservatorships sounds like it might be a little bit depressing.
I've been practicing law for a very long time, and I almost never see judges happy. Judges by definition, aren't very happy. That's supposed to be happy. I'll tell you when they're happy. Citizenship ceremonies, adoptions, marriages, and restoration of rights, because in all of those, they're making a citizen, they're making a family, they're giving people an opportunity, and judges love that. So there's a lot of joy in this amidst all the heartbreak, and I hope more people get to experience.
But thanks Jonathan. That's Jonathan Martinez, Senior director for a Law and Policy at the Burton Blatt Institute at Syracuse University. A police raid on August eleventh brought international attention to the Marion County Record, a weekly newspaper, and the small Kansas town of nineteen hundred, putting it in the center of a debate over press freedoms. Police seized computers, personal
cell phones, and a router from the newspaper. All items were released Wednesday after the county prosecutor concluded there wasn't enough evidence to justify the action. The police chief had alleged in court documents that a reporter either impersonated someone else or lied about her intentions when she obtained the driving records of a local business owner. The newspaper's attorney said the reporter's actions were legal under both state and
federal laws. Joining me is First Amendment law expert Eugene Vollock, a professor at UCLA Law School. In this case, I mean they came in, They collected computers, cell phones, and other materials from the newspaper's office, the home of its owner and editor. And it was based on an investigation into how the newspaper got a document containing information about a local restaurant owner in a two thousand and eight
conviction for drunk driving. Is this so unusual? And I want to say overkills the only word I can think of.
Well, hard to know for sure whether it was overkill or not without knowing all the facts. Although it does look like even the government lawyers have concluded this was overkilled. It does appear to be pretty unusual. Let's step back a little bit. As a general matter, if somebody has evidence of a crime, or more precisely, if there is probable cause to believe that they have evidence of a crime, then the government can get a search warrant to search
the property for this evidence. That's pretty routine, and newspapers don't have any special First Amendment defense against these kinds of searches, or to be precise, newspapers aren't categorically protected by the First Amendment against these kinds of searches. There was a case in the nineteen seventies called Zurcher we Standford Daily, where a newspaper said, you can't search our files.
We're a newspaper, We're protected by the First Amendment. And the court said, look, you don't get any more or less protection under the First Amendment than anybody else. Now.
To be sure, whenever the government is searching for and trying to seize First Amendment protected activity for example, or First Amend protected materials for example, allegedly obscene literature or some such there are some extra protections that are offered there, but there's no categorical First or Fourth Amendment protection against
searches of bookstores or searches of newspapers in the life. However, there is a federal statute that does provide some quite broad statutory protection, and it says essentially that the government may search and seize material that are related to possessed by essentially newspapers, book publishers, and like only in very neurosurpus.
One of them is if there's reason to believe that the person possessing them, say the newspaper, is committing a crime or has committed a crime to which the materials relate, and that crime has to be something beyond just received possession,
communication or withholding up the materials. So if people think that the newspapers I don't know, engaged in tax evasion, well then they can seize the records and maybe they can even seize other materials that are related to what the newspaper does in order to see if they're evading taxes. If there's suspicions that the publisher of the newspaper has committed some other crime, then in that case they could
search for evidence of that crime. But if the only suspicion is, oh, this person maybe let's say, is the recipient of an unauthorized leak, then that's not enough. There's also an exception for situations where immediate seizure is necessary to prevent death or serious bodily injury, and then a couple of exceptions for situations where subpoenas don't seem likely
to succeed, therefore a search warrant is required. So under the statue, generally speaking, of the government does think that there's information that a newspaper possesses that, generally speaking, is should proceed by a subpoena ordering the newspaper to turn it over rather than through a search warrant.
So in this case, there was a search warrant that was issued by a judge, but what was cited was potential violation of laws involving identity theft and the illegal use of a computer.
Well, it certainly does appear that the warrant was not justified because again the local prosecutor's office, I want to say it to the county attorney's office, has asked for the warrant to be withdrawn because it concluded the Marion County Attorney concluded that insufficient evidence exists to establish a legally sufficient nexus between the alleged crime and the places searched. And the item seized, which is to say that there's no basis for a warrant, And again that should apply
regardless of whether it's a newspaper or not. Right, if they searched my house for things completely unrelated to any publishing work that I do, and it turns out that there's no sufficient nexus between my house and any evidence that they're looking for, that's an invalid warrant as well.
The newspaper says that it was investigating the police chief and he had threatened to sue them, and that's why this came about.
But right, I can't speak to that.
Right, But my question is if the police chief was investigating how the newspaper got this information about a drunk driving conviction in two thousand and eight, would that be enough to get a warrant?
Well, let's say there's probable cause to believe that they actually hacked into some computer. Then in that case there would be enough presumably by a hypothesis, there's a probable cause to believe that and probable cost to believe there's evidence of that in the newspaper's records. In that case, there'd be enough to satisfy the Fourth Amendment, because you can get a warrant based on probable cause? What about
this federal statute forty two Usc. Two thousand and AA. Well, one question is whether there's probable cause the person is committing or has committed a crime beyond just receipt, possession, communication, or with holding of the materials, And then there'd be an interesting question, does for example, hacking into a government computer involve more than just illegal receipt of information? Yes, I'd say probably so, because that's illegal access to a
government computer. So you can imagine situations in which a search world would be authorized both under the Fourth Amendment and under this federal statute, and of course it would have to comply with state law as well. It just sounds like at this point the attorney has reviewed matters and said, you know, there's just really not enough basis for it.
Can the newspaper sue the police department?
Now?
Well, I think a lot depends on the particular circumstances. I don't have enough facts to be able to speak to that with confidence, but in principle, you could imagine that they might be able to sue. To be sure, if the police search pursued into a valid warrant, then in that case, there's a good faith defense under the
Fourth Amendment. But let's say the police did not provide accurate information, or the warrant was transparently invalid, or some such an in principle, you could imagine such a lawsuit, but we'd have to know a lot more factual detail.
It's understandable why so many media outlets were up in arms about this. I mean, has this happened before? Have we seen in recent times raids like this?
You know, I do not recall them. It's a big country, and maybe there were some raids that didn't hit the news or hit the news but didn't hit my consciousness. But I do think it's quite unusual, generally speaking, partly because of this federal statute and partly just because, you know, government officials often want to be treated well by newspapers, so they often treat the newspaper as well as well. My understanding is these kinds of rates are very rare.
I mean, it could have stopped them from publishing because they took the computers, they had to borrow computers.
According to news accounts, they actually managed to publish on their normal publishing schedule. It was hard, but they managed to do that. But yes, in principle, if they see, if the computer sees all of the documents, it may stop the newspaper from publishing. And there the Supreme Court has said, yes, you know, if that's the issue that might raise important First Amendment question.
There are so many questions here and the investigation is ongoing, both on the state side and the newspapers side. Thanks so much, Eugene. That's Professor Eugene Volik of UCLA Law School, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg