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By Craig Malisow
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Carolyn Casale Taub stood there in her nice black dress, waiting to get through the five-minute formality that she had been assured would go so easily. Known more often as Mrs. John Ben Taub, wife of the nephew of famed Houston philanthropist Ben Taub, she was in a Harris County probate court on May 17, 2000, a little more than a month after her 84-year-old husband's death from cancer. It was a little less than two months since her own father died.
The nice black dress was the same dress she'd worn to both funerals.
For several years, millionaire John Ben Taub had told her not to worry about anything after he died. "He said, 'Now darling, I know I'm not going anywhere soon, but if and when I do, my will's prepared, so it'll be very easy,' " she remembered.
At her side was Stuart Haynsworth, the longtime family attorney who'd drawn up the will. This all was pro forma stuff. Her husband was dead, the will was in good shape, and he'd left everything to her, so there was no taxable estate; she qualified for the 100 percent marital deduction provision of the Internal Revenue Code. She and her attorney in a routine action asked the court to waive the appointment of any appraiser since none was needed. Everything went as scripted.
That's until Judge Rory R. Olsen of Probate Court No. 3 said no. He was appointing an appraiser to assess the value of the estate's real property and he was doing it today. All Haynsworth could do was sputter a protest. Taub stood there numbly.
From Taub's perspective, things got worse over the next few months. Appointed appraiser Frank Nadolney estimated it would take six months and $78,000 to do the appraisal. When she and her lawyer came up with other appraisers who said they would do the work more quickly and for far less money -- the one she settled on quoted her a price of $9,500 -- the judge said no again. Nadolney would do the work. The judge ordered that she deposit $30,000 directly to Nadolney or to the court registry. She placed it with the court.
She and her attorney repeatedly asked Nadolney not to proceed until the issue of whether the work was needed could be settled in court. Eventually, they sued Frank Nadolney and his firm, Nadolney Enterprises. Taub and her lawyers asked that Olsen recuse himself from the case. Taub also appealed to the office of the state's presiding statutory probate court judge, Guy Herman, to appoint another judge in the case. Herman came from Austin to hear the case himself.
Almost a year and a half after Taub's initial court appearance, Herman ruled that Olsen "committed substantial error in appointing an appraiser to appraise the Estate of John Ben Taub." He vacated the order to appoint Nadolney and ruled there should be no appraiser at all. Nadolney wouldn't get paid anything.
In a letter to the lawyers in the case, Herman said that "a probate court can only appoint an appraiser when an interested person applies for such or when the court 'deems it necessary.' " There was no testimony explaining why Olsen thought an appraiser was necessary, Herman wrote, adding that "absent such evidence, the decision to appoint an appraiser is insupportable."
In addition, he said, appointing an appraiser made no sense. "The will provided for an unlimited marital deduction, which had the effect of causing decedent's estate to owe no taxes." And even if an appraiser had been needed, "it is rather odd to appoint only one appraiser since the estate possessed an interest in real property in several counties," he wrote. Because of residency requirements, an appraiser appointed in one county cannot appraise in another one, he said.
Finally, he noted that any need for an appraiser ended when visiting Judge Jim Scanlan approved the inventory and appraisement back on January 25, 2001.
In August 2001, Olsen recused himself from the case.
In February 2002, Herman ordered Taub's $30,000 deposit returned to her.
But everything isn't settled. Attorney Joe Slovacek sued on Nadolney's behalf, saying that his client was only following the orders of the court and that he deserves to be paid. Nadolney thinks he's been treated unfairly.
Taub thinks she's been treated unfairly as well. "Probate Court No. 3 is a travesty of justice," she says. "It's two and a half years later, and I've got to go to appeals court."
As for Olsen, he's running for re-election after his first four-year term as probate judge. His supporters say he's been maligned. Slovacek says Olsen is a good judge who was personally attacked in this case for no good reason, because a probate judge can legally appoint an appraiser whenever he sees fit.
"Rory Olsen is a punching bag for a lot of people in Harris County," Slovacek says. "He's a Republican grassroots individual who earned his stripes and he got elected and for some reason the other probate judges I've heard bad-mouth him from behind his back.
"Some would have you believe that he's throwing favors to his buddies. Well, that's just not the case," Slovacek says. "Frank's lost money on this case."
Actually, Olsen's detractors, for the most part, describe him as a likable fellow, a "nice man." But his critics, who come from not only the legal system but the mental health community as well (his court is designated the primary one to hear commitment proceedings), claim that whatever his education résumé -- and it is an impressive one -- Olsen doesn't know the law. At least not the law he rules on.
In fact, critics often refer to him as "stupid," "dumb" or "that idiot." Or as one noted attorney put it: "He's dumber than a bucket of hair."
This in itself would be damning enough, but when those harsh assessments are coupled with statistics from Olsen's court, it may explain why Republicans are saying they support the Democrat in this race.
A review of county records shows that in 1999, there were 25 Texas courts having probate jurisdiction (in smaller jurisdictions, county courts handle probate). A total of 108 cases were transferred to visiting judges. Of these 108, Olsen transferred 25 cases from his court -- 23 percent of all the cases transferred in the state.
In 2000, there were 29 courts with probate jurisdiction. That year Olsen made 30 of the total 108 transfers, for close to 28 percent of the total number. And in 2001, there were 97 transfers out of 37 courts, and Olsen was responsible for 30 of them -- just shy of 31 percent.
In all that time, only one case was transferred to Olsen's court by another judge, according to county records.
Not infrequently, some attorneys say, Olsen starts on a case, messes it up and then recuses himself, leaving it to another judge to clean up after him. Olsen says there are good reasons for his recusals; he knows a lawyer involved or the attorneys would like to combine a case before him with one they have in another court.
That still doesn't explain why no one is combining cases into his court. Or why some attorneys say they give each other high fives in the probate clerk's office when the random selection process assigns one of their cases to any of the other three probate judges.
And even though he's stepping out of these cases, Olsen still collects his annual salary, now set at $121,296 -- while visiting judges have collected a total of $69,577 since January 1, 1999, in extra taxpayer expense to take on Rory Olsen's work.
Rory Olsen got his bachelor's degree in political science from Loyola University, his law degree from Duke, an MBA from the University of North Carolina at Chapel Hill and an LLM from Southern Methodist University.
In his first two years out of school, Olsen worked with a number of law firms, then settled into private practice on his own. He focused on estate planning and probate guardianship, and in the late 1980s he began picking up court appointments in mental health cases from his predecessor, Judge Jim Scanlan. He also invested his spare time working pretty heavily for the Republican Party.
A portly man with a mustache who walks with a short stride, Olsen can be charming and likable. He's proud of the improvements he's made to his courtroom: a good loudspeaker system for the hard of hearing, padding on the benches to make the wait more comfortable, and movie posters lining the walls inside the courtroom (paid for out of his own pocket) because he wanted people to feel better when they came to his court and he figured everyone likes the movies. All the posters have court or criminal justice themes. Over the jury box are displayed framed movie stills from Twelve Angry Men starring Henry Fonda.
Olsen was elected to the bench in 1998 after Scanlan, the self-described "last Democrat in the Family Law Building," decided it was time to go before the Republican sweep got him, too. Olsen said it was watching Scanlan years ago that made him decide he wanted to be a probate judge.
As such, Olsen is responsible for matters concerning estates, wills and heirships (when no one left a will). He is the chief administrative judge for the mental health docket, although fellow Probate Judge William McCullough also hears mental health cases. There are some trials, but most matters are handled by the judge.
Critics contend Olsen is rarely in court, and in fact during a recent week it was difficult to find him on the bench. He said that's just the normal ebb and flow of the court's business. And while Scanlan tells of the days in which he conducted three jury trials in one day over at Jeff Davis Hospital, critics claim Olsen avoids contested cases and jury trials and passes off anything that looks controversial to other sitting judges or to retired jurists filling in for him.
According to the county auditor's office, from January 1, 1999, to the present, Scanlan received $44,873 sitting in for Olsen, Judge John Hutchinson $14,154, and Judge Jerome Jones $10,550, for a total of $69,577.
Olsen said he takes time off only when he's sick or on vacation.
He is opposed by Jim Downes, an assistant attorney for Harris County, who has more than 20 years of experience practicing in mental health law.
"I don't want to talk about my opponent, but I have a far superior education and experience," Olsen said.
Downes got his bachelor's at Boston University, his law degree from the New England School of Law, a master's from Boston University and is an LLM candidate at the University of Houston. He said he wasn't going to talk about his opponent other than to say, "I think Judge Olsen is a decent guy. I think I can do the job better."
The Houston Bar Association preference poll, which is heavily weighted toward incumbents because that's who lawyers practice before, showed Olsen with 715 votes to Downes's 515. In the bar poll on judicial qualifications, 72 percent rated Olsen as qualified or well qualified, while 70 percent rated Downes that way. Olsen's ratings were mediocre compared to most other incumbents'.
Carolyn Taub is still upset over her experience in Olsen's court and doesn't think he's qualified at all to be a probate judge. "He caused me totally undue stress at a time when I'm in the middle of the worst grief period of my life; not to mention this man cost me thousands and thousands and thousands of dollars."
In the motion to remove Olsen from her case, Taub argued that Olsen was biased toward appointing an appraiser with high fees. Her motion pointed out that Nadolney isn't a licensed appraiser -- he subcontracted the work.
Slovacek said whether he should have or not, attorney Haynsworth himself in his initial court appearance said that this was a taxable estate and he might need an appraisal. So the judge ordered the appraisal and he shouldn't be blamed for that.
Taub said that's nonsense, that Haynsworth was talking about an appraisal and a shelter credit trust for her stepchildren when she dies. "Not now. It's when I die. There's no need for an appraisal until I die."
That doesn't matter, Slovacek said. Nadolney should be paid for his work which he was under court order to do, he argued. Slovacek objected to Herman hearing the case, saying, "We had a liberal Democrat come down from Austin to show the Republicans in Harris County how to run a courtroom. He couldn't have reassigned it to another judge in Houston?"
Nadolney said he's trying to put the whole experience out of his mind, although that's difficult with the ongoing lawsuit.
"When he recused himself, that left me out on a plank," Nadolney said. "When I saw that judge come down from Austin, I saw the handwriting on the wall."
On August 17, the Houston Chronicle endorsed Rory Olsen for re-election, saying he and Mike Wood of Probate Court No. 2 had been "innovative and hard-working." That endorsement outraged Mary Edick, who had appeared in Olsen's court in May 2000 trying to get her 41-year-old son, Tim, who has schizoaffective disorder, committed for continued mental health treatment after he'd refused to take his medication for two months and was increasingly psychotic, paranoid and aggressive.
She wrote the newspaper asking why it endorsed him. "I found this judge to be bored, impatient and uncaring. His brilliant decision was to throw my son out of the hospital (the staff was stunned) and onto the streets where he could have been a danger to himself or others," she said.
Edick had known her son was in trouble. He was spending all day sitting in her garage, just smoking and drinking enormous quantities of Coke or coffee. The six-foot-one man weighed 300 pounds with no exercise and no interests. "I felt like I was watching him die," Edick said.
Tim had been assessed at Ben Taub, where he had been uncooperative. After a week, Edick had to ask the court to continue her son's commitment. "Throughout the hearing I got the impression that Judge Olsen was bored. Several times he waved his hand at one or the other of the attorneys, indicating, 'Get on with it.' " Olsen never talked to Edick or her son before ruling that he should not be committed, she said. "A short conversation with Tim would have shown Judge Olsen the seriousness of his condition."
Because her son was so hostile, Edick did not feel safe letting him return home with her. She looked desperately for a shelter that night while her son wandered the streets, or so she thought. The next day, however, a doctor at Ben Taub called to say Tim had never left the front courtyard of the hospital. He was sunburned from being out there for hours. Two doctors went out and "talked with Tim, signed emergency commitment papers and readmitted him to Ben Taub, where he spent several weeks," Edick said.
"He's a wonderful person who's very ill, and when I say he needs to be in a hospital, he needs to be in a hospital. Some judge who doesn't know him doesn't need to be making that decision. Any judge who makes that decision should have to take Tim home for a week."
According to Olsen, who would not comment about the Edick case specifically, he is not uncaring, just following proper procedure.
"Judges are taught in judges school and it's reinforced in judicial seminars that part of being a judge is you maintain a poker face. You do not show emotions," Olsen explains. "I work real hard on my poker face. We are supposed to maintain a very dispassionate demeanor."
The criteria for commitment are that a person is mentally ill and that he is a threat to himself or others or is in a deteriorating condition and because of that can't function in society and will get worse without treatment, Olsen said. Just because a person is mentally ill doesn't mean he should be committed. There has to be some kind of overt act or continuing pattern of action, Olsen said.
"When any judge has a mental health case, we operate in a fairly narrowly confined area. Judges don't have the arbitrary powers to do what is best. We have to follow the law. Sometimes that prevents us from doing what we want to do," Olsen said.
"This part of the job is almost mechanical," he emphasized. "If the state doesn't meet the elements, the person isn't committed."
Evelyn Johnson, a member of the Harris County Mental Health Needs Council and other local mental health organizations, said families' knowledge should be considered in commitment proceedings. "For instance, when son Johnny starts talking about blue light bulbs, the family knows he's at a crisis stage. It's like if my husband's had a heart attack and then later he starts experiencing the same type of things that led to the last attack, like tightness in his chest, I'm going to get help for him."
Betty Cobb, well known in mental health circles as one of the founding members of the westside chapter of the National Alliance for the Mentally Ill, and a registered Republican, also wrote the Chronicle following its endorsement, saying Olsen "has been a big disappointment" to her.
"I get calls from families all the time, and I get a lot of complaints about Judge Olsen -- that he doesn't want to listen to the family," said Cobb. She hosted a candidate's breakfast at her house for Downes.
Also, while predecessor Jim Scanlan went to the Harris County Psychiatric Center (HCPC) twice a week, Olsen goes only on Fridays. "That means that patients have to wait," Cobb said. "The family has to try to deal with them at home until the judge comes in once a week. That's a long time. It seems like there's a lot more people with problems now than when Judge Scanlan was around, and we're getting less from Judge Olsen.
"I don't think he considers the mental health part of the job that significant, and I think he's bored with it," Cobb said.
Carolyn Hamilton, who has been involved in NAMI and whose husband, Tom Hamilton, is on the board of the Mental Health and Mental Retardation Authority of Harris County, says she doesn't think Olsen is sensitive to people with mental illness. "I have nothing personal against him. He has just seemed so bored in listening to what they have to say." He hasn't worked well with psychiatrists or patients' families, she said.
Saying she also supports Jim Downes's candidacy, Hamilton said Olsen has had plenty of time to become better at the mental health portion of his job and she just doesn't see that happening.
Tom Mitchell, head of the ACT (Assertive Community Treatment) team for MHMRA, which works with the mentally ill at their homes, jobs and in the streets, said his staff used to be called to mental health hearings, "but we don't get called anymore."
Dr. George Santos, psychiatrist and head of Texas West Oaks Hospital, said members of the Houston Psychiatric Society have been unsuccessful in their attempts to meet with Olsen to discuss their concerns.
Olsen, he said, has an overly officious and difficult manner in the courtroom. Santos himself had two patients sent to him that were released by Olsen before Santos thought they were ready. Two to three weeks later, one of them was arrested after she was caught carrying a knife into a church, Santos said.
One of Santos's major problems with Olsen is that he's told families they could not present testimony that he felt was hearsay. Olsen agreed. He said hearsay is not allowed in testimony, that a witness must see something firsthand to testify to it. But Santos said that given the special nature of the mental health courts, family testimony is crucial.
Santos said psychiatrists in private practice resist taking commitment patients since they will have to go to Olsen's court. Under Judge Scanlan, Santos said, these hearings would be done two or three times a week and private psychiatrists who needed to get back to their hospitals would go first. Now, at one time a week with no accommodations for the private psychiatrists, he said most don't want to go.
For his part, Olsen readily acknowledged he's "not popular in some parts of the psychiatric community" but said that's because of some of the legislation he's helped draw up in Austin. When Scanlan was over Probate Court No. 3, he discovered that some HCPC patients were being used in research projects, Olsen said. After two years of wrangling, Olsen said, UT Medical School, which oversees HCPC, accepted a consent decree that stopped putting patients into placebo experiments as part of their treatment, Olsen said.
He said Scanlan warned him that UT might try something else after he was gone. According to Olsen, they did and he discovered it. "I found that if they found someone who met the protocols for being a research subject, they would send us paperwork to dismiss him but they wouldn't let him out the door." State Representative Kyle Janek, a physician, carried the bill, which passed unanimously in the House and sets new restrictions on people entering such programs.
As for his once-a-week mental health hearings, Olsen said he took his cue from Judge McCullough, who did them that way. It's more efficient, he said.
Opponent Downes sees the mental health duties in a slightly different way. "This court requires a judge who is not only familiar with the law but is willing to work with people with disabilities, with families with disabilities. This is not like many other areas of law. It's not as orderly as you would like to think a courtroom is."
As an assistant county attorney, Downes represents the state in commitment proceedings. "I think the mental health code is quite clear that the whole commitment process is to facilitate the provision of mental health services for those people who need it. I do believe that we need to carefully examine each case. But most of the time the process works pretty well."
As for whom to listen to in court, Downes said, "Certainly the patient has a right not to testify if they don't want to. But if they're willing to talk, I think that's a good indication of a patient's status."
Prior to its endorsement, the Chronicle had written about Olsen. Columnist Thom Marshall in spring 2001 wrote about Olsen's actions in the Taub case (though he did not identify Taub by name) and in some other cases, saying that probate court had become a dangerous place to be for people with money.
Ruth Bauer's son Douglas had gone to court asking for a temporary guardian for his mother, who he contended had a serious drinking problem, claiming that she was incapacitated. Her attorney at the time, Robert Piro, alleged that her son and husband had cooked up this scheme to have her declared incapacitated as a means of controlling about $450 million she would receive once her divorce was final.
Olsen appointed attorney Darlene Payne-Smith to be Bauer's guardian ad litem, attorney Judy Lenox to be Bauer's temporary guardian and attorney Jim Wyckoff to be Bauer's attorney ad litem. Lenox would make medical and financial decisions for the 54-year-old Bauer, while Payne-Smith would look after her overall interests and Wyckoff had the responsibility of being her advocate in court-- although Bauer already had hired other attorneys, Ray Riley and Joe Horrigan, to represent her.
Horrigan and Riley fought the actions as totally unnecessary. They argued that Bauer's alleged alcohol problem shouldn't rob her of her civil rights through a temporary guardianship.
Olsen also appointed Priscilla Ray, a psychiatrist, to interview and testify about Bauer. In 2001 alone, the Ruth Bauer Management Trust paid $185,336 to Payne-Smith's firm of Crain, Caton & James, $22,725 to Ray and $79,428 to Wyckoff -- a total of $287,489.
Bauer's attorneys filed a motion to recuse Olsen, saying there had been an ex parte communication between the judge and/or members of his staff and attorney Payne-Smith; that is, Olsen or his office talked with one side of the matter about the case without the other side being present. The recusal motion also alleged that Olsen was biased in the case and was making rulings without listening to evidence.
Eventually the family joined in to ask that the guardianship be dropped. Ultimately, the case was removed from Olsen's court when Judge Herman ruled that it had not been assigned correctly and it needed to be reassigned randomly. It went to Judge Mike Wood, who dismissed the guardianship motion.
Olsen declined to discuss the Bauer case specifically, saying if a guardianship action was ever reinitiated it would come back to his court. He did say that ending a temporary guardianship isn't just a case of everyone agreeing that it should be over. It involves one person saying he'll do one thing in relation to the case and another person saying he'll do something else. So it takes time to work out.
Riley filed a civil rights lawsuit in federal court, challenging the state statute allowing the appointment of a temporary guardian without notice. Olsen in turn filed a motion to dismiss the federal case, saying that a civil rights suit against a state judge was inappropriate. That case was dismissed and is now on appeal.
Bauer and her 82-year-old husband decided not to divorce, although they live separately.
The irony is hard to escape. Olsen's mental health critics complain he doesn't do enough commitments, doesn't get their troubled relatives the services they need. On the estate and guardianship side of probate court, critics say Olsen is all too ready to take away someone's civil liberties with a guardian ad litem and that he runs up court costs unnecessarily in cases involving wealthy people.
Some lawyers say Olsen is up to the job. Attorney Pete Schneider said he was in trial in Olsen's court in 1999 or 2000 for more than a month in a complicated hospital liability trial and found Olsen's rulings to be fair and prompt and that he was sensitive.
Other observers say he relies too much on his first assistant, Georgia Akers, an attorney who ran against him for the Republican nomination and then went to work in his court.
While some attorneys rise to his defense, his own bar polls gave him so-so ratings. Some find his court manner arrogant and demeaning -- he's often described as a judge who feels he's been made invincible by putting on his robes -- but other critics say he's an amiable enough sort who's just in over his head. They add that he becomes defensive if anyone suggests that he doesn't understand something.
He is not helped by the fact he's following Judge Scanlan's act, which in retrospect has become an icon to the mental health community. Melinda Brents, the assistant county attorney who works with mental cases at HCPC, says Olsen does "a fine job."
Asked about how he feels when a ruling of his is reversed, Olsen was nonchalant. "I don't worry about it. Judge Scanlan told me it's part of the territory. You've made it through three years of law school and people disagreeing with you. It comes with the territory." He said he's been reversed only once on a mental health case. The higher court said he shouldn't have ordered one commitment, Olsen said.
One of the courthouse stories that go around about Olsen, who is known to avoid public speaking despite his denials, was the time he appeared on a panel with several other judges before a group of lawyers.
The moderator asked a question, the first judge answered, the second expanded upon that a bit and so on down the line. As anyone knows who's ever done this, it can get really tough to come up with something new the farther you are in the chain.
As the story goes, Olsen answered the first one or two questions but then as another question came around, he confined his answer to one word: "Ditto."
Well, this was kind of funny, perhaps a wry commentary on the inaneness of panel discussions. During the next round, a new question came to him and he answered "ditto" again. And so it went for most of the evening, earning him an instant new nickname.
Did people laugh? "No," one attorney says. "Everyone was uncomfortable. It was excruciating."
It's probably ditto time for Olsen again. We'll leave it to the people in his courts to determine if the result is wryly funny, uncomfortable or excruciating.