The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Deirdre M. Smith is a professor at the University of Maine School of Law in Portland. These are her views and do not express those of the University of Maine System or the University of Maine School of Law. She is a member of the Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.
For nearly two decades, I’ve supervised student attorneys at the University of Maine School of Law who assist low-income Maine residents with legal matters in courts throughout the state. Most of the courts we work in are part of the state’s court system, which has full-time judges appointed through a rigorous selection and confirmation process. Among its other important features and innovations, Maine’s court system has a central administration to support and oversee the work of court clerks and judges and a dispute resolution program.
Some of our clients, however, must have their legal problems addressed in county probate courts, which are not part of the state’s court system. While these courts oversee legal matters that involve important rights, such as adoption, guardianship and inheritance, they do not have the resources or efficiencies that come from being part of a true judicial system. Most significantly, probate courts lack full-time judges. No matter what its geographic size or population, each county has one probate court with just one part-time judge who is elected every four years. Unlike Maine judges in the state court system, probate judges, with their more limited responsibilities, are allowed to practice law on the side.
Aware of the sharp differences between the probate courts and state courts, my students and I wondered: How did we end up here? After researching the history of Maine’s courts, I found the answer: These troublesome disparities exist because our probate courts are stuck in time — in 1855 to be precise. That was the year that a change to Maine’s Constitution made probate judges elected part-time county officials, a provision that has left the probate courts out of nearly two centuries of improvements made to Maine’s state court system.
As the work of the probate courts increased and became more complex, the problematic inequities among Maine’s courts became more obvious. In 1967 Maine voters decided to repeal that 1855 constitutional provision so that the probate courts could be part of the unified state court system. That repeal can only go into effect, however, when the Legislature creates a different probate court system with full-time probate judges. Although many studies have offered recommendations for such a system, the Legislature has not been presented with a specific plan until now.
Last year, the Maine Legislature established the Commission To Create a Plan To Incorporate the Probate Courts into the Maine Judicial Branch “to honor the intent of a long-standing vote of Maine people and ensure that Maine people currently have the same access to justice in all Maine courts.” The commission produced a comprehensive report in December 2021 with recommendations to preserve what is working well in the probate courts while bringing those courts into the state court system.
The proposed plan would leave the county-based probate registers in place and funded with probate court filing fees and county funds while using a phased approach to bring the judicial work of the probate courts into the Maine Judicial Branch. By shifting the costs for judges, court-appointed attorneys, and court visitors to the judicial branch, the new system would relieve county budgets and property taxpayers of those expenses. It would also ensure that all probate law matters are heard by judges who can dedicate their skill and energy to the work of judging full time.
The commission’s recommendations are now in a bill, LD 1950, “An Act To Implement the Recommendations of the Commission To Create a Plan To Incorporate the Probate Courts into the Judicial Branch,” pending in the Maine Legislature. This sensible plan represents one of the single most significant opportunities in recent decades for the Legislature to improve Maine’s justice system. Most Maine lawyers, including those who practice regularly in probate courts, as well as the Maine Council on Aging and the Maine Office of the Attorney General, support the key recommendations in the commission’s report.
Passing this bill will implement the choice made by Maine voters a half a century ago and finally bring the probate courts into our modern court system.