Norman Fisher’s enemy lived within him.
If he didn’t properly mix two medications each day, his diabetes would attack his body and mind. Once, his out-of-control blood sugar left him so delirious that he drove his car into a ditch.
For two decades, support staffers defended Fisher against the disease by helping him organize his medications and buying his groceries. But in late 2014, the people assisting the Biddeford man, who was mentally disabled, said he needed more help than they could provide.
With none of Fisher’s family able to step in as his caretaker, the York County Probate Court turned to the program of “last resort,” a public guardianship administered by the state. The state assigned him two public guardians at different times during the next four years, and they were responsible for making all medical and housing decisions for him.
Those guardians submitted one-page reports once a year to the probate judge overseeing Fisher’s case, but the reports offer little detail of his care: How often the guardians went to see him. If they talked to Fisher about his medications. Whether they knew his needs and wants.
There’s also no evidence in the court records that the probate judge raised questions, even after each guardian submitted virtually identical reports two years in a row.
Then, in August 2019, Fisher was taken to a hospital and released to a home for adults with disabilities, one run by Residential and Community Support Services (RCSS), where the workers didn’t properly administer his medications, according to court records.
Within 72 hours, Fisher was dead.
“Norman’s death was the type of death that you really hope won’t ever happen,” said Rory Robb, a now-retired director of Community Partners, which ran an independent living program that supported Fisher.
Two RCSS workers were charged in Fisher’s death and their cases are pending, but little attention has been paid to the probate court system that oversaw his guardianship.
The tragedy was yet another blemish in a decades-long history of Maine’s probate courts — a collection of 16 part-time county judges whose independent operations are unique in Maine’s judiciary.
For nearly 56 years, state lawmakers, county officials and probate judges have rejected plans to overhaul the structure of and increase funding for Maine’s county probate courts. Legal experts say the probate courts need to become part of the state’s judicial branch to protect Maine’s most vulnerable residents — people like Fisher.
State law gives county probate judges the authority to approve adult guardianships, handing them the responsibility to select the people who will decide about the care of seniors deemed incapacitated, adults with disabilities and people with debilitating mental illness.
Yet probate courts don’t have sufficient budgets or employees to consistently screen, train or monitor the guardians they appoint, the Monitor found.
There is such a lack of oversight that multiple probate courts don’t know how many guardianships they have approved, or even whether the people they are responsible for are still alive, an ongoing investigation by The Maine Monitor found.
Nor do the courts employ full-time investigators whose sole job would be to follow up on guardianships to make sure the individuals are being treated well.
Lawmakers tried to improve oversight by revising the state’s probate laws in 2019. The new law reflects the conclusion of experts nationally who said probate courts need to pay closer attention to guardianships, said Deirdre Smith, a professor at the University of Maine School of Law and former director of the Cumberland Legal Aid Clinic, which helps people navigate the probate courts.
“There needs to be very robust oversight by the judge to make sure people aren’t exploited,” Smith said. “We certainly heard plenty of instances of that kind of exploitation with guardianship appointments.”
Robb, whose career for decades centered on working with vulnerable people and their guardians, added: “There’s no real oversight of guardians.”
A unique system
Maine’s probate courts stand alone. They are not a part of the state judicial branch. Their judges are part-time and elected, which bypasses the state’s review and appointment process for all other judges. They operate largely autonomously from each other and the state supreme court. County-funded and county-run, probate courts operate on shoestring budgets, with judges paid as little as $25,000 a year and few court administrators.
Every state has a probate system, and in Maine it has growing importance: The state of nearly 1.4 million people has the oldest population in the country and the highest percentage of people over age 65. Beyond guardianships, Maine’s probate courts also oversee estates, wills and name changes.
Guardianship is the most intrusive arrangement the probate court can order. It restricts an adult’s right to make choices about where to live, medications to take, friends to visit or how money is spent, and instead delegates those decisions to another person. Guardians are an unpaid position but they can get reimbursed for fees.
Approximately 1,200 adults are currently subject to a public guardianship through the Maine Department of Health and Human Services. Like Fisher, they have no family willing or able to manage their medical, financial or social needs as they age or because of disability.
In addition, hundreds if not thousands more adults are under the guardianship of family members or friends appointed by probate courts. The exact number of adults in guardianships in Maine is unknown because several probate courts said they don’t track it.
A top court administrator in Androscoggin County said there were simply “thousands” of guardianships in the county. An administrator in Piscataquis County said she had “no idea.”
The Cumberland County Probate Court acknowledged it has lost track of an unknown number — potentially thousands — of incapacitated adults and doesn’t know whether some are still alive.
The change to state law in 2019 required new guardians to file a report each year with the probate court to update the judge on the well-being of the adult in their care. Guardians appointed before the law change also are encouraged to check in periodically but are not required to update the court.
“Unfortunately, without them staying in contact with the court, there’s no way of knowing where they’re living or if they’re alive or dead,” said Erica Rickards, deputy register at the Cumberland County Probate Court.
Kennebec, Lincoln, Sagadahoc and Waldo counties are exceptions and were able to provide a count of active guardianships when asked by the Monitor. On Friday, workers at the York County Probate Court said they had learned how to close guardianship cases. It would take a manual review of files, however, to determine what cases were still active.
Smith pointed to the new requirement for guardians to file an annual report as as step forward, but that doesn’t mean the standards are being implemented consistently across the state.
“We need to make sure that we have someone who’s available to actually read (guardian reports) and to take steps if something concerning is raised. I don’t see how our probate judges possibly have time to do that,” Smith said.
The Maine Monitor sent a survey to the 16 county probate courts and received responses from 10 that revealed some probate judges and registers do little to assess the fitness of a guardian before or after they are appointed.
Only three probate courts that responded run background checks on prospective guardians to see whether they have been convicted of a crime. None of the responding probate courts run credit checks to see if the guardian filed for bankruptcy, which must be disclosed by the applicant. State law says guardians must have “regular” visits, although none of the probate courts that responded have policies about how frequent those visits should be.
The state doesn’t cap the number of adults a public guardian is responsible for at once. But generally public guardians employed by the Department of Health and Human Services are responsible for approximately 25 “clients,” adults subject to a guardianship order from a probate court, wrote Jackie Farwell, spokeswoman for the department in response to questions from the Monitor.
They must meet with their clients in-person at least once every 60 days, although the goal is to not go longer than a month, she said. Unlike family members who agree to be guardians and undergo no mandatory training, public guardians receive some training and have ongoing supervision from the state.
Although the department coordinates Maine’s public guardianship program, the regular oversight of guardianships is the court’s job, she said.
“The probate courts are responsible for oversight of all adult guardianships,” Farwell wrote.
Fewer than a dozen workers run each county probate court. Several counties reported having just three court employees, some part-time.
Each probate court is supported by a handful of volunteers — typically retired social workers or lawyers — that the probate judges can assign for a small fee as “visitors” to evaluate whether a guardianship is appropriate. Each county also budgets money each year to appoint lawyers to represent adults at risk of losing their rights.
The Monitor spoke with eight county probate judges, who all said they believe they are doing a good job. They lauded their efficiency compared to the state courts, and while acknowledging they lacked money, many said being a judge was a public service they took seriously.
“At least in this county, we give people very good and quick service. I think if they got people in the state system, they wouldn’t be as quick and efficient,” said Judge Paul Aranson of Cumberland County.
Probate courts are supposed to monitor reports by family and public guardians to ensure they are caring for the adult for whom they are responsible, according to state law.
Yet Robb, who retired in 2018 before yearly guardian reports were required by the state, said oversight of guardianships was basically “non-existent.” As for the Fisher case, she said there were failures in several aspects of his care, even though the law enforcement investigation zeroed in on two care workers.
Asked if probate courts have a responsibility to keep a closer watch on guardianship cases, she said:
“There is no follow-through. That’s why I can’t point the finger at the judge and say, ‘You are responsible,’ because it’s not built into the current system,” Robb said. “The system needs to be revamped to see what kind of oversight the court should be providing once they’ve awarded guardianship.”
A state review concluded that serious medical neglect by workers at RCSS led to Fisher’s death in August 2019. The state moved quickly to terminate its contract with the company.
A few weeks before his death, Fisher was already in a dire situation. His Biddeford apartment was infested with bed bugs, according to court records. The people who were supposed to help him refused to go inside, and the independent living program discharged him from its care before Fisher was moved to RCSS. For three weeks, Fisher’s blood sugar was erratic and his public guardian didn’t report the conditions to the probate court. Instead, on July 26, 2019, he filed the same report as the year before, which did not mention those issues.
The probate judge had the power to demand the guardian come into court and provide more detail about Fisher’s well being, but there is no evidence in the court file that he did so. And soon after, it was too late.
Carol Lovejoy has worked in the York County Probate Court for 43 years, including 19 as the elected register. After a Monitor reporter reviewed the details of Fisher’s case with her, Lovejoy said no one is assigned to check whether guardians are duplicating past reports. She added that the probate court plans to hire a paralegal whose duties may include checking for duplicate reports.
“We don’t necessarily read every report that comes in — the staff doesn’t,” Lovejoy said. “We give it to the judge, so I would hope that the judge would catch that.”
The York County probate judge in Fisher’s guardianship, Bryan Chabot, declined to answer questions about the specifics of Fisher’s case, but said that he and the court staff had protocols in place if a guardian’s reporting seemed lacking. Chabot has not been accused of wrongdoing. The state investigation of Fisher’s death does not appear to have included a review of the judge’s role, and the state declined to comment further.
Low pay, big responsibility
In Sagadahoc County, David Paris runs the probate court without a permanent courtroom. His office is on the third floor of the county building in Bath. The state courts lease a courtroom in the same building, but Paris isn’t allowed to use it, he said.
Sometimes, Paris presides over adoptions in the county commissioners’ meeting room downstairs. He holds hearings in the grand jury room when it’s available. If a virtual meeting needs to happen, he holds court from the lunchroom.
Paris didn’t even receive robes when he was elected in November 2020. His wife ordered him a set online for less than $100.
“I run it like any other judge would run their court. I run it as professionally as I can,” Paris said.
Probate judge candidates must be licensed to practice law and reside in the state. They are elected by county residents to serve four-year terms.
After 30 years of private practice doing criminal and civil litigation in the state’s district, superior and supreme courts, becoming a judge was on Paris’ bucket list. He said he didn’t believe he had the political connections to be appointed to the state courts, so he chose to campaign for probate judge.
“I’ve got to go out and beat the street and earn it from the people. I’ve got to tell the people, ‘This is why I can do the job.’ The other ones, a lot of times, people will be tapped on the shoulders,” Paris said. “You’ll see where judges go from never being in the courtroom to the law court.”
Paris is being paid approximately $37,500 this year. The median probate judge salary in Maine was approximately $36,200 in 2021, according to a state study commission that looked at moving probate courts into the state judicial branch.
Piscataquis County pays its probate judge the least, just $25,000 a year. Most counties also provide health insurance and retirement benefits to the elected, part-time officials, although Sagadahoc County doesn’t.
Members of the 2021 study commission proposed that probate judges be made full-time and paid the same as a district court judge — currently $145,642 a year — if the probate courts were moved into the judicial branch.
Their pay would be below the national median judge salary of $168,761, according to the National Center for State Courts. Maine consistently ranks among the lowest in the nation for judicial compensation, even without factoring in probate judges.
“The salary of the probate (judge) can’t sustain a lawyer,” said Paris, who continues to work in private practice.
“They should stay on the bench”
No Maine law or rule of professional conduct requires elected judges to close their law offices or stop private practice. In fact, there is a special carveout in Maine’s judicial rules for probate judges to practice law. Critics say it creates, at a minimum, the appearance of a conflict of interest.
Most probate judges in Maine have an active practice in criminal, civil, real estate or probate law, according to a review by the Monitor. Some probate judges have agreed not to appear in each other’s courtrooms to represent clients in contested probate cases, but the agreements are nonbinding and unenforceable.
Practicing in the state court system also has never been off-limits to probate judges, creating situations that are, at the least, awkward for the attorneys involved, some lawyers said.
As a lawyer, Elizabeth Stout represented clients in state court and probate court in southern Maine for 30 years. During one case in the Biddeford District Court, her opposing counsel was Robert Nadeau, who was the York County probate judge. Nadeau and Stout heatedly argued in district court, and the case became more contentious than it needed to be, she said. Later, Stout found herself arguing on behalf of another client to the same man, but this time he was the judge.
“It’s just really uncomfortable,” Stout said.
Nadeau held a position of power as a judge, and Stout said she didn’t want to anger him in a way that could affect a future client. She said Nadeau appeared fair during her future cases, but his dual roles were a concern.
“Why are they appearing as litigants? They should stay on the bench if they’re on the bench,” Stout said.
Nadeau was suspended from practicing law by the state supreme court in 2017 for multiple violations of Maine’s judicial ethics rules while he was the county probate judge. He did not return a voicemail request for comment.
It doesn’t look good to lawyers or their clients when an elected probate judge appears as a lawyer in another county probate court, said retired state supreme court Associate Justice Ellen Gorman.
When serving on the state supreme court from 2007 to 2022, Gorman saw instances in which a probate judge could have benefited from training. In some cases, probate judges failed or refused to create a complete record of what had happened in a case, or appeared unfamiliar with the probate code, she said. But because probate judges work as lawyers, the state courts did not think it was appropriate to train them alongside the other judges, she said.
“When you are not devoting all of your time to being a judge, it is hard to maintain the level of professionalism and education of law that is necessary for the position. I have the utmost respect for the probate judges. It’s not that they are incapable of the work; it is that the time is not provided to them. The amount of time they have available to them to be judges is simply not sufficient,” Gorman said.
State considers consolidating probate courts
Maine voters passed a constitutional amendment in November 1967 to get rid of part-time probate judges and replace them with full-time judges, but the amendment never went into effect.
State lawmakers have disagreed about what to do for nearly 56 years.
The studies they commissioned, including the most recent one in 2021, reach the same broad conclusion: Probate judges should be full-time to eliminate the appearance of a conflict that occurs because they are practicing lawyers. The recommendations also urge the probate courts to become part of the judicial branch.
A bill in 2022 to reduce the 16 part-time judges to nine full-time judges was passed by the House and Senate, but wasn’t funded and Gov. Janet Mills never signed it into law.
“Personally, I continue to feel that implementing the 2021 plan is a goal. I think the new system would both fulfill the constitutional amendment and benefit the people of Maine,” said Sen. Anne Carney (D-Cape Elizabeth), a chair of the legislative Judiciary Committee.
Consolidation of the probate courts under the most recent proposal would mean that several counties would no longer have a local probate court. Some say that would be a good thing, because it would even out the workload across counties with smaller populations.
“The volume of probate court work varies, and some counties do not have enough probate work to keep a full-time judge busy,” Carney said.
The price tag for the state to run the probate courts was estimated by legislative analysts to be $7.4 million annually, compared to the $5.1 million counties collectively spent to operate them in 2022.
Counties have resisted moving the probate courts under the control of the state because of the increased cost and a fear of losing local control, said Michael Carpenter, a former state lawmaker and lawyer in Aroostook County who is a critic of the current set-up.
“Courts should be above local control. Local control is about electing your school board, electing your town council and that sort of thing. It’s not about, it shouldn’t be about, interpreting the law, in my opinion,” Carpenter said.
The debate over state control of probate courts re-emerges every few years, and the effort to move forward always has stalled because of money, said Peter Baldacci, who is in his 35th year as a Penobscot County commissioner. County leaders are skeptical of the strings that will come attached to any deal for the state to take over paying for probate judges, lawyers and visitors, he said.
“The more that the state pays, the more they have an ability to say how to operate,” Baldacci said.
The probate courts’ independence from state courts and each other has been criticized for creating a lack of uniformity among the probate courts. Processes vary county to county. There is no chief probate judge to set standards. There is no central administrative office and no collective money for the probate courts to use to implement systemic reforms.
An “assembly” of the state’s 16 probate judges does, however, meet twice a year to discuss policy and legal matters.
The state government’s “one-size-fits-all” approach doesn’t address the counties’ differences, Baldacci said. There’s mistrust among county leaders that the state also will eventually seek control of the probate court’s top elected administrators, called registers. Or that the probate courts won’t be a permanent part of the judicial branch budget, and funding will become an annual fight between state leaders and county commissioners, he said.
The state court system has its own problems. Chief Justice Valerie Stanfill said earlier this year that Maine’s judicial branch was “frail” amid a record backlog of unresolved criminal and civil cases, and high turnover of judges.
“They need to take care of their house before they expand into probate,” Baldacci said.
Counties go without resources
On a recent Wednesday morning, neat stacks of files sat on Judge Paul Aranson’s desk as he readied for a day of cases at the Cumberland County Probate Court.
Inside the files were doctor’s notes and guardianship plans submitted by family members seeking to take responsibility for a loved one’s care. Other files contained letters from parents seeking to regain guardianship of minor children, or adults asking to end the state’s control of their medical, financial and social decisions.
Aranson’s mornings are scheduled in 20-minute increments. He checks the status of cases remotely on Google Meets or in person in his courtroom, a place with decorative ceilings, thick red curtains and a large wooden dais where he sits behind a wall of Plexiglass installed during the COVID-19 pandemic. Although many of the cases are confidential, there are rows of benches for observers.
During one of the morning’s cases, Aranson struck up a conversation with a man in his mid-20s about the man’s part-time job at Home Depot and why the Boston Celtics are doing so poorly. The man’s parents were petitioning to be appointed as his legal guardians. After a few minutes, Aranson decided to appoint a lawyer to represent the man before deciding the guardianship question.
At 72, Aranson is mostly retired from private practice and is several decades removed from being the county’s district attorney. He is at the courthouse three days a week, which is more often than most judges.
Cumberland County’s probate court in downtown Portland has as many, if not more, resources than any other county in the state. And still, it’s not enough to ensure the court maintains contact with each incapacitated adult in its jurisdiction.
Since September 2019, Aranson has authorized approximately 712 guardianships or conservatorships that provide financial oversight to individuals. But there are thousands more from before his time on the bench that court administrators said they do not track or have regular — or sometimes any — contact with the guardian or adult.
The court workers often don’t even know whether those people are still alive.
One Cumberland County worker keeps a spreadsheet of recent guardianships to track reports that guardians are supposed to submit, the deputy register said. If a guardian fails to file the annual report, they are scheduled for court to explain the deficiency and could be stripped of their guardianship.
Other courts also are dealing with a shortage of workers and money to handle the guardianships.
The York County Probate Court, for example, is not able to schedule all hearings within the 14 days required by law when an adult objects to an emergency guardianship, said Lovejoy, the county register. A shortage of court-appointed lawyers and visitors, and the time it takes to send everyone proper notice of a guardianship petition, are among the reasons the hearings do not happen in time, she said.
Penobscot County also frequently can’t find enough local lawyers willing to accept court appointments to probate cases, said Register Renée Stupak.
Payment is a major reason.
The county pays court-appointed lawyers $80 an hour, which used to match the wage paid by the state system to defense lawyers. But state lawmakers bumped those attorneys’ pay to $150 an hour in February, which not all of the probate courts have been able to match. Stupak said she plans to ask county commissioners to pay $100 an hour.
“If we can’t get attorneys, what are we going to do?” Stupak asked. “We can’t leave these people hanging.”
Another gap in the probate court system is people whose job is to check that a court order is being followed.
The county probate courts that responded to the Maine Monitor survey do not employ full-time investigators to check on cases. The only people who investigate guardianships are court-hired “visitors,” but they do only initial interviews with guardians and those needing guardians. They often don’t remain engaged.
“I think a visitor is adequate. Some are better than others but they’re all pretty decent,” Aranson said. “It might be certainly worthwhile to have money for a visitor to go out on a spot-check investigation, but the reality is that most people under guardianship are in a state-licensed institution.”
That’s not how other states do it. In Ohio, for example, probate courts must employ or contract with investigators with a degree in social work, special education or psychology to do the initial review and also to read annual reports submitted by guardians and receive complaints.
“We do not have good oversight,” said Lyman Holmes, the Washington County probate judge for more than 30 years. “Certainly, in some states, the probate courts have investigators, and they can go around and investigate. They have full-time investigators on their staff but we certainly don’t.”
Norman Fisher’s final days
Even though he was supported by direct support professionals for much of his life, Fisher guarded his independence.
His apartment was filled with treasures he found throughout his day — newspapers and items that most people would consider junk, said Rory Robb, the retired director at the independent living program that worked with Fisher for two decades.
“He struggled with having to have any staff in his home and anybody that was going to touch his things,” Robb said. “He, unfortunately, was institutionalized earlier on in life, and that really sets people on a different path. You really care about your possessions because you didn’t have many things, or things were taken away from you. So we understood why he had this need to try to keep everything. We just tried to keep his apartment somewhat safe.”
Even so, food rotted in his fridge. He neglected his hygiene. And he stacked boxes against the door after a break-in, creating a personal safety hazard.
These parts of Fisher’s life were manageable. It was his worsening diabetes that concerned those who supported his independent life, Robb said. Fisher needed up to four insulin shots a day and had to determine the dosage based on a sliding scale to manage his blood sugar, court records show. His support team told the Monitor that Fisher couldn’t comprehend the severity of his diabetes or accurately describe doctor’s orders to his caregivers.
In late 2014, the team decided that Fisher needed a guardian, Robb said.
For 4 1/2 more years, with a guardian occasionally checking on his case, Fisher lived independently until his apartment in Biddeford became infested with bed bugs and caregivers would no longer enter. Instead they checked on him from his front porch.
Fisher’s public guardian and case manager worried that for his health and safety, he couldn’t live alone, and they persuaded him to go to the emergency room for an evaluation in 2019, court records show. One of the last items his public guardian grabbed as they left Fisher’s apartment was a bag of medications near the door, but it was missing his insulin and glucometer, the machine used to measure his blood sugar, according to court records.
At the hospital, they broke the news to Fisher: He couldn’t return to his home.
Fisher was discharged from the hospital directly to RCSS on Saturday, Aug. 24, 2019. For three days no one checked his blood or gave him insulin, according to court records. When a nurse finally went to the house and tested him the following Tuesday, the meter read “high,” which meant Fisher’s blood sugar was too high for the glucometer to measure, according to court records. The nurse called 911, but Fisher stopped breathing before the ambulance arrived.
Fisher died on the floor at age 62 of hyperglycemia with ketoacidosis, according to court records.
Two RCSS workers were criminally charged with endangering the welfare of a dependent person. Their cases are pending in Cumberland County Superior Court. One ex-worker declined an interview request through her lawyer. The other worker, through her own lawyer, said she is pleading not guilty to the charge.
Following a broader investigation, the state ordered RCSS to repay $30.2 million of MaineCare funds because it hadn’t performed required background checks on every employee or ensured they were properly trained in CPR and first aid, in violation of state rules. The company is appealing the state’s decision.
Fisher’s death was investigated by law enforcement and the Maine Department of Health and Human Services. His public guardian, case manager and a member of the state’s crisis team were found not responsible for the death. The guardian has since died. The judge’s role is not mentioned. The department’s policies were not found to be a contributing factor to Fisher’s death, wrote the department spokeswoman Farwell in response to questions from the Monitor.
Judge Bryan Chabot was in charge of the York County Probate Court in August 2019.
There’s no indication in the court file that Chabot noticed that the report Fisher’s guardian filed was the same as the one submitted the year before. And Chabot didn’t flag the duplicated report for further review, probate court records show.
While he declined to comment on the specifics of Fisher’s case, he said that in general, the probate court’s role in monitoring guardianships is to see whether guardians have done their duties, if the guardianships should continue and if fees should be approved, Chabot wrote in an email.
Chabot resigned as probate judge in 2019 to accept a job in Portland as an administrative law judge with the state Workers’ Compensation Board.
The Monitor interviewed two dozen people for this article and they were unwilling to comment on the judge’s role in Fisher’s case. Instead they criticized broad issues with how probate courts are structured.
“Having a centralized system with centralized oversight, with clear expectations, with sufficient resources — all of those things are essential to ensure that the legislative intent behind regular reporting requirements are actually being fulfilled,” said Smith, the law professor.
Adult Protective Services would not release meeting notes or dates that Fisher’s guardians met with him between 2015 and 2019. The agency said in response to a public records request by the Monitor that all records created while an adult is under the jurisdiction of the department are confidential.
Erin Salvo, associate director of Adult Protective Services, said in a written response denying access to the records that the guardians’ reports were in compliance with rules in place at the time.
A single page
The plain manila file for Norman Fisher, case number 2014-1050 in York County Probate Court, includes no mention of the investigations that followed his death. There’s nothing about the criminal charges against the two workers, or the termination of the home’s license, or the plans by York County to hire a paralegal who would keep a closer eye on the annual reports by guardians.
The last record filed by the Department of Health and Human Services is a notice dated Aug. 29, 2019, informing the court of Fisher’s death.
Typed onto it a few days later and signed by the judge is a brief message, “The incapacitated person’s death is noted. No further guardianship-related action is necessary.”