KENNEBUNKPORT — Many Mainers have been troubled by recent public reports of questionable practices in York County Probate Court. Ethical allegations have been made about the county’s probate judge, and most informed citizens would like to see appropriate attention to the problem.
We’d start by asking: Is it a systemic problem indigenous to the current structure and modus operandi of all Maine probate courts, or is it a failure of “judicial oversight” – policing judges? Many citizens outside the legal system would ask: Could there have been any judicial oversight in this situation?
In our view, despite the dramatic reports coming from the probate court (and the need to address those issues in their own right), there is a great need for a much broader, more extensive public conversation about all of Maine’s courts. The total court system needs a review, one not limited to just probate courts, nor one conducted by the legal guild talking to itself in the privacy of the county judicial centers. Can we trust existing systems of oversight for our judges?
There are troubling symptoms from other types of courts – not just probate – that merit public discussion. We are aware of widespread public dissatisfaction with Maine’s family courts. There are also noises calling for reform of criminal justice systems. While we don’t claim expertise in any of these matters, there appears to be symptomatic smoke in these various court subsystems. Is there also fire?
It should also be noted that Maine courts seem to get consistently low grades in national surveys – such as the Center for Public Integrity’s 2015 rankings, which gave the state’s system of judicial accountability an F. These outside evaluations suggest that we have no cause to be smug about the functional quality of our Maine courts.
What to do and how to do it is a conundrum. Who is to investigate the nature of the problem(s) and take responsibility for systemic repairs or remodeling?
Simply correcting a symptom is problematic. This approach ignores other fault lines in a total system and is inadequate for any complex systemic problem-solving. There is also a need to prevent proposed solutions from getting trapped by the perspective of a particular professional culture and by the inbred nature of legal relationships in a small state like Maine.
An outside evaluation of the entire system and how it is working for the public is needed. Who owns our court system (probate and others)? For whose benefit are they working? How do taxpayers fit into effecting change – making the decisions involved in court reform? The “our guild knows best” approach is elitist, exclusionary and wrong.
It is a concern on the part of some in the legal profession – such as Peter Murray, author of a recent Maine Voices op-ed in the Press Herald – that holding judicial elections invites problems for judges.
Though voting for judges is not at all an uncommon practice in many other states, there is professional prejudice against voting for judges in this state. Voting for judges does invite problems. The root problem for many legal oligarchs seems to be messy democracy.
But there are also problems with the current process for the selection of district and superior court judges. It operates largely below the public’s radar: Behind closed doors, eminent members of the legal profession select judicial nominees. They are then privately promoted to the governor and then rubber-stamped by the Legislature.
For the Judiciary Committee and the Maine Senate, judicial candidates are presented as thoroughly “prevetted” by the bar. It is difficult to reverse the process in the Legislature without lawmakers challenging this vetting or conducting their own evaluation. Citizen involvement is nil.
The current judicial appointment process inspires cynicism in the public users of court service. And this opaque process doesn’t eliminate the potential for cronyism and patronage.
We suggest that there is a need for an in-depth look at the total court system and for a thoughtful analysis by outside consultants who are experienced in advising on the rehabilitation and repair of large government systems. Some of the consulting resources of a Harvard Business School might come to mind – as an example.
Let’s avoid prescribing a “Band-Aid” to cover just probate courts, or to glue probate onto the already overburdened district and superior courts. This court reform conversation should continue and expand, bringing in those who pay the taxes that support the courts, along with technical help from out-of-state consultants in how best to understand the problem and how to set future direction for the best interests of all citizens.
Send questions/comments to the editors.
