By Professor Deirdre Smith
Maine’s courts have undergone a substantial transformation during the last century and particularly in recent decades. The county superior courts and local courts have been absorbed into the state court system, which is now organized into districts and divisions. The Maine Legislature has aligned the jurisdiction of the Superior and District Courts in a way that enables the Maine Judicial Branch to allocate judicial resources more efficiently and effectively. State courts have implemented numerous innovations, such as the unified criminal dockets, the Family Division, and problem-solving courts including the Veterans Court and Family Drug Treatment Court.
Maine’s county-based Probate Courts, however, have been left out of these reforms. Due to a unique constitutional conundrum, these courts are frozen in time -the year 1855 to be precise- and unable to move forward with reforms to better meet the needs of Mainers today. How did this happen, and what can be done to get these courts un-stuck? I described the historical roots of the problem in an article published last year in the Maine Law Review, “From Orphans to Families in Crisis: Parental Rights Matters in Maine’s Probate Courts,” and the Maine Legislature will take up two bills this session that provide an opportunity to fix it. I’ll summarize here the answers to those questions.
Maine’s Probate Courts were created in 1820, at the start of Maine’s statehood, and they were modeled after Massachusetts’ probate courts. Unlike the Maine Supreme Judicial Court, which sat in “terms” around the state, the Probate Courts were located in each county seat and open year-round to ensure that people would not need to travel too far or wait too long to administer a deceased person’s estate. The “judges of probate” were appointed by the Governor, and the nature of their work at that time was more akin to a county official than what we’d think of as a judge today.
In 1855, the voters of Maine amended the Maine Constitution to take away the Governor’s power to appoint county officials–including Probate Judges and Registers and Sheriffs–and shift it to county voters, ensuring that control over the Probate Courts would remain with county government. As a result, each county, regardless of geographic size or population, has a single Probate Judge elected by the voters. And because these judges work in the court on only a part-time basis, they have been permitted to practice law on days when they were not presiding over the Probate Court. No other judges in Maine may engage in legal practice.
However, in 1967, with the rapid changes to the state courts and an interest in promoting efficiency, the people of Maine signified that a different approach was needed. That year, 55% of Maine voters approved the repeal of the 1855 amendment as to the Probate Judges and Registers. However, there was no set effective date for the repeal. Rather, it would become effective “at such time as the Legislature by proper enactment shall establish a different Probate Court system with full-time judges.” The purpose of that contingency was, as described later by the Maine Supreme Judicial Court, “to give the Legislature discretion to study and determine the best system for administering and adjudicating matters traditionally within the jurisdiction of the Probate Courts. The intent was to open the way for change in the system.” However, fifty years later, the Legislature has still not established a “different Probate Court system,” and for that reason the 1855 system has remained unchanged and the Probate Courts have not been part of the important reform and reorganization of the state court system.
After the 1967 amendment, Maine’s Probate Courts and their relation to the state courts were the subject of several studies, the findings and recommendations of which were remarkably consistent. They noted that the availability of judicial resources across the state was the result of historical development, rather than planning, and there was no “rational allocation of resources,” as one report put it. Some of the studies observed that reorganization was needed as a result of the adoption of the Uniform Probate Code in Maine in 1979; the nature of the work done by Probate Judges shifted away from the administration of estates to the remaining areas of its jurisdiction, particularly guardianships and adoptions, with an overall reduction of the judicial workload. Each study recommended that the Probate Courts be made a part of the state court system.
In light of these various studies, the Maine Legislature has considered bills from time to time that would effectuate the 1967 amendment. None have passed. This legislative session, the Legislature has yet another chance. LD 1260 proposes a Resolve “To Establish the Commission To Create a Plan for the Establishment of a Probate Court System with Full-time Judges.” Such Commission would be comprised of 15 members (legislators and interested parties) to develop a plan describing how a probate system with full-time judges can be created and funded. The Commission would be required to submit a report by December 6, 2017, with its findings and recommendations, including proposed legislation.
One of the important outcomes of the elimination of part-time Probate Judges would be the end of Probate Judges practicing law. Separate legislation LD 1043, “An Act To Promote Impartiality in the Probate Court,” would phase in limitations on such practice. Under current law, and the Maine Judicial Canon, sitting Probate Judges are permitted to practice law in all Maine courts except their own. This means that Maine Probate Judges are free to practice any kind of law before any judge in the state, including other Probate Judges and state court judges in the same county where they sit as Probate Judges. This practice gives rise to a range of actual or potential conflicts. At a minimum, it creates an appearance of impropriety that diminishes respect for our system of justice and increases the risk that opposing counsel will not meet their duty to zealously represent their client.
Maine is highly unusual in that it imposes essentially no restrictions (other than appearing in their own courts) on the practice of law by part-time judges. Those few states that do permit law practice by part-time judges recognize the need for restrictions on such practice. For example, in New Jersey, “Surrogates” (who are the equivalent of probate judges) may not practice law in any “estate or trust matter,” in or out of court, or in any “criminal, quasi-criminal or penal matter,” in the county where they sit or before the Probate Court in any county. New York prohibits its part-time judges from practicing law in the court on which they serve or in any other court in the county in which their court is located. The practice of law by Maine’s Probate Judges has long been the specific focus of criticism. Each of the studies of the Maine Probate Courts recommended prohibiting such practice, and one committee report stated that it was a “point of serious complaint” and raised “the serious appearance of impropriety.”
In short, LD 1043 and LD 1260 each proposes a critical reform that is long overdue. Will the Legislature finally act to implement the will of the voters and the consensus recommendations of these studies? We will soon find out.
 See Resolves 1967, ch. 77 (amending Me. Const. art. VI, § 6 (repealed 1967)).
 Opinion of the Justices, 412 A.2d 958, 982 (Me. 1980).
 N.Y. Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, § 100.6(B)(2) (available at https://www.nycourts.gov/rules/chiefadmin/100.shtml#06).
 See In re Estate of McCormick, 2001 ME 24, ¶16 n. 4. See also Peter L. Murray, Maine’s Overdue Judicial Reforms, 62 Me. L. Rev. 631, 640–41 (2010) (noting potential for “serious scandal” and other problems from current system in which Probate Judges are permitted to practice law).