The opinion of the court was delivered by: RUBEN CASTILLO
On December 27, 1994, this Court entered a Memorandum Opinion and Order directing the Plaintiff to respond to a single issue identified by the Court. This issue, now known to the parties as the "due process issue," is whether Mr. Wellman received reasonable notice of the May 8, 1990, hearing (at which the Petition to Appoint a Public Guardian for him would be heard) and an opportunity to be heard during that proceeding. Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).
In the now converted motion for summary judgment, the defendants attach a summons and a copy of the Petition to Appoint a Public Guardian ("Petition"), which were personally served upon Mr. Wellman prior to the May 8, 1990, hearing ("hearing"). See Defendants' Reply Exhibits B and C. In addition, defendants previously attached a state court order which held that this summons, together with contact by Guardian Ad Litem, Sandra Thiel, on two occasions prior to the hearing, was sufficient notice both to Mr. Wellman and to the plaintiff (Mr. Young), under state law (i.e., the Power of Attorney Act and the Durable Power of Attorney).
The issue for this Court on summary judgment is whether the summons, together with a copy of the Petition, is a sufficient evidentiary basis for this Court to conclude that Mr. Wellman was afforded federal due process. There is now no dispute that this summons and a copy of the Petition were personally served. (Ex. B & C of Def. Reply). We believe that this summons is sufficient evidence from which to conclude that Mr. Wellman was given reasonable notice of the hearing. This notice, in turn, gave Mr. Wellman an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950).
It is also undisputed that Mr. Wellman did not have a known living spouse, adult child(ren), parents, adult brother(s) or sister(s), or any adult kindred, and that a Guardian Ad Litem attempted to inform Mr. Wellman of his due process rights prior to the hearing. These facts provide a sufficient evidentiary basis for the Court to find that Mr. Wellman was afforded federal due process.
As Mr. Wellman's attorney, Mr. Young was not entitled to notice, and therefore cannot litigate this claim any further.
United States District Judge