Politics & Other Mistakes: Probing probate

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Maine’s Probate Courts are ripe grounds for stupidity.

While most of the 16 part-time judges who handle adoptions, guardianships, estates, and name changes manage to do so without screwing up too badly, a few bungle the job so badly they call the whole system into question.

One had so many ethical violations, his license to practice law was suspended for two years. Another couldn’t seem to schedule cases. A third refused to allow a woman to change her last name to that of her boyfriend unless she married him.

Al Diamon“That’s what happens when you have no accountability,” said Robert Mittel, a Portland attorney who’s been working on reforming the probate system for 25 years.

The fundamental problem with probate is that it’s run by the state’s only elected judges. Attorney Peter Murray summed it up in a 2015 op-ed:

“It takes little imagination to see the potential for abuse by judges who must seek campaign contributions from the very lawyers and litigants who will appear before them. Justice itself is brought into disrepute when probate judges make decisions and appointments that are seen to favor their campaign supporters.”

The probate system’s bumbling (and unethical) attempts at administering the law aren’t new. More than a half-century ago, the state’s voters became so disgusted with its serial incompetence, they passed a constitutional amendment doing away with it.

Unfortunately, the amendment contained a provision saying it wouldn’t take effect until the Legislature approved a replacement. For more than 50 years, lawmakers – demonstrating the political skills of a drunken probate judge – botched the job, although they did pass a reform measure during the administration of former Gov. Paul LePage.

LePage vetoed it.

The latest attempt to remedy this situation has now arrived. In November, the excessively named Commission to Create a Plan to Incorporate the Probate Court into the Judicial Branch delivered its final report to the Legislature. A majority of the commission favored replacing the elected judges with nine judges appointed by the governor and confirmed by the state Senate.

If the Legislature approves, eight of the new judges would be assigned to districts corresponding to those covered by district attorneys. The ninth judge, the chief, would oversee the system and fill in where needed.

It would be like a real court system, instead of an amateur-hour version of “Judge Judy.”

Of course, there are all sorts of complications in transitioning from the current crop of part-timers to full-time, qualified judges. For starters, some of the incumbent judges’ terms don’t expire until 2024. Removing them prematurely would be as legally questionable as a few of their decisions.

To avoid that issue, the commission is recommending replacing the judges as their terms expire, starting in 2022. That means that for two years, there’ll be a mix of elected and appointed judges answering to different authorities. The chief judge would oversee the appointees, but the elected judges would continue to be employees of the counties, themselves hotbeds of semi-insane old coots chosen by voters who neither know nor care who serves in those offices.

If I wanted to wander off topic, I’d insert a little rant right here about how the state would be better off if it got rid of county government. But blathering on about how elected sheriffs and registers of deeds serve no useful purpose would merely divert attention from the more pressing need to rid ourselves of barely qualified boobs masquerading as probate judges.

To get back to that, expect a good deal of quibbling over financial details when the Legislature takes up this measure. There’ll also be some vicious blowback from the counties, who will resist any attempt to reduce their authority. There’s no guarantee we’re on the verge of correcting the big problem with probate judges.

“Almost everybody who votes for a judge has no idea what they do right or what they do wrong,” Mittel said. “That’s why judges should not be elected.”

The time is long past when we should have eliminated this bizarre vestige of colonial times and replaced it with a system that equitably and ethically administers the laws.

Because there’s more than enough stupidity in the other two branches of government.

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