Statehouse Report: Panel advances bill to appoint Maine probate judges

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Maine’s 2-century-old tradition of electing its county probate judges would come to an end if legislation just approved by the Judiciary Committee becomes law.

The 16 part-time county judges, who can also practice law, would be replaced by nine full-time judges appointed by the governor and confirmed by the Legislature. Probate would become a separate part of the state judicial system, joining the Supreme, Superior, and District courts.

It would be the first major change in Maine’s judiciary since part-time municipal court judges were replaced with full-time District Court judges in 1962.

The 44-page overhaul that is LD 1950 was voted favorably by the Judiciary Committee on Feb. 24 on a 9-5 vote, with all seven Democrats, one independent, and Passamaquoddy Tribal Rep. Rena Newall in favor, and five Republicans opposed.

If enacted, the law would trigger a 54-year-old constitutional amendment that abolished the county probate judge system, contingent on it being replaced by state judges. Though ratified by voters in 1967, lawmakers never came up with the required system.

Proposed by a legislatively appointed study commission, the new bill would retain county registries of probate, which were commended for “excellent customer service.”

Kennebec County Register Kathleen Ayers, a commission member, said county offices are now able to provide informal help to anyone who comes in, something that would be harder in a consolidated system. Transferring records to the state could also require formidable expenses, she said. 

The study commission divided 12-2 in recommending adoption.

The majority plan would phase out current judges over three years, as their terms expire. Cumberland County’s current probate judge, Paul Aronson, would leave office when his term ends this year.

Deirdre Smith
University of Maine School of Law Professor Deirdre Smith: The probate system has become detached from the rest of Maine’s legal system. (Courtesy Maine Law)

The only written opposition to the bill came from the Maine County Commissioners Association. The Maine Association of Registers of Probate, whose offices would be largely unaffected, raised no objections, though the Lincoln County register dissented.

The county commissioners said that the new system would be more costly, although it would be paid for by state general revenue, not the property taxes supporting counties. That’s an argument echoed by committee Republicans, who see it as an expansion of government.

The business of the probate courts, which involves wills, trusts, guardianships, and adoptions, would be better directed by full-time judges, supporters say.

Leo Delicata of Portland testified for Maine Legal Services for the Elderly that more complex arrangements for guardianships under a new state Probate Code have taxed resources, and finding lawyers for indigent clients has become increasingly difficult.

Deirdre Smith, a professor at the University of Maine School of Law, said the probate system has become detached from the rest of Maine’s legal system. Although probate judges hear “cases involving the care, custody, and welfare of children, they are not part of the Family Division, and … lack the support, expertise, and resources that the Legislature intended to provide … when it created the division in 1997,” Smith said.

Both commission members who opposed the recommendations filed minority reports.

Sen. Lisa Keim, R-Dixfield, who also served on Judiciary, said she hadn’t heard complaints from members of the public who have used the probate courts, and questioned whether voters, if asked again, would favor replacing elected judges with appointed ones.

Oxford County Probate Judge Jarrod Crockett said he favored an alternative system that would preserve elected positions. Noting that the majority plan would assign judges to the same counties now served by the elected district attorneys, he proposed keeping eight full-time elected judges, but have no chief judge – the ninth state appointment under the majority plan.

The four other judges on the commission voted with the majority.

Prospects for the bill are uncertain. It has an emergency preamble to accommodate a Jan. 1, 2023 startup, but would require two-thirds majorities in the House and Senate for enactment.

Funding could be another issue; the cost of the new system is still undetermined. It may require funding through the supplemental budget, for which public hearings continue this week.

Rep. Barbara Cardone, D-Bangor, an Appropriations Committee member who served as House chair of the study commission, said it’s unclear whether the new system’s costs will be known in time for inclusion in the supplemental budget.

Otherwise, it might have to compete for funding from the “Appropriations table,” a limited amount of money set aside for all legislation enacted but not funded as part of the regular budget process.

Kathleen Ayers said that, although the registers are not “all in” for the majority plan, she believes it’s time to move forward to a new system, and try to keep faith with the original vote more than half a century ago.

Douglas Rooks, a Maine editor, commentator, and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now in paperback. He welcomes comments at [email protected].