Bill Summary – FastDemocracy

This bill implements the recommendations of the Commission To Create a Plan To Incorporate the Probate Courts into the Judicial Branch, referred to in this summary as "the commission." The report is available online at https://legislature.maine.gov/doc/7703. Maine's county Probate Courts occupy a unique position in Maine's justice system. Unlike Maine's other trial courts, Probate Courts are not part of the state judicial branch and Probate Court Judges are not appointed by the Governor and confirmed by the Legislature. Instead, pursuant to the former Constitution of Maine, Article VI, Section 6, Probate Court Judges and Registers of Probate are elected to 4-year terms in each county. Although the caseload varies from county to county, it is generally understood that Maine's county Probate Court Judges serve on a part-time basis and, accordingly, they are authorized to engage in the practice of law. In 1967, the Legislature passed Resolve 1967, chapter 77, which proposed an amendment to the Constitution of Maine that would repeal Article VI, Section 6 and would 
"become effective at such time as the Legislature by proper enactment shall establish a 
different Probate Court system with full-time judges." This constitutional amendment was 
approved by a majority of the voters of Maine on November 7, 1967. In its report, the 
commission recommended that the Legislature implement this constitutional amendment 
by establishing a new state Probate Court with full-time, appointed state Probate Court 
Judges. Part A of the bill sets out that it is the intent of the Legislature that the enactment 
of this legislation, which implements the commission's recommended new Probate Court 
system with full-time judges, will trigger the repeal of the Constitution of Maine, Article 
VI, Section 6 pursuant to Resolve 1967, chapter 77 on the date that this legislation is 
approved. Although this bill is intended to trigger the repeal of the Constitution of Maine, Article VI, Section 6, which provides for the election of probate judges, the commission did not recommend and the bill does not provide for the removal from office of any county Probate Court Judge prior to the expiration of the term to which the judge was previously elected under the Constitution. To avoid that result, the commission recommended a multiyear, multistep process for establishing a new state Probate Court with full-time judges. Part B of the bill, which is effective immediately, Part C of the bill, which is effective January 1, 
2027, and Part D of the bill, which is effective January 1, 2029, implement this multiyear, multistep process as follows. 
Parts B and D of the bill establish a state Probate Court within the judicial branch that is distinct from the District Court and Superior Court. By January 1, 2029, the state Probate Court will be staffed by 9 full-time judges appointed by the Governor and confirmed by the Legislature, including one judge assigned to serve as the primary judge in each of 8 new Probate Court regions that will be aligned with the State's 8 prosecutorial districts. A. When the terms of the incumbent probate judges in Androscoggin, Franklin, Knox and Penobscot counties expire on December 31, 2026, they will be replaced by county Probate Court Judges elected to 2-year terms that will expire on December 31, 2028. B. When the terms of the incumbent probate judges in Cumberland, Hancock and Washington counties expire on December 31, 2026, they will be replaced by 4 new state Probate Court Judges appointed by the Governor and confirmed by the Legislature in the same manner that District Court Judges and Superior Court Justices are appointed and confirmed for terms that commence January 1, 2027. Although not reflected in the text of the bill, the commission also recommended that these judges be supported by one new law clerk, one new judicial administrative assistant and 4 new court marshals. C. Beginning January 1, 2027, the 4 new state Probate Court Judges will preside over probate proceedings in Cumberland, Hancock and Washington counties while the remainder of the State's 16 counties will continue to be served by an elected county Probate Court Judge. If a judicial vacancy occurs in a county Probate Court after January 1, 2027 due to the death, resignation or retirement of the elected county Probate Court Judge, the vacant position will not be filled and jurisdiction over that county's probate matters will be transferred to the new state Probate Court. If the Chief Justice of the Supreme Judicial Court determines that the number of state Probate Court Judges is insufficient to provide for the efficient administration of justice in all of the counties served by the new state Probate Court, the Chief Justice may request that the Governor appoint an additional state Probate Court Judge. Although not reflected in the text of 
the bill, to ensure that funding is available for all of the new potential state judgeships 
as they arise, the commission also recommended that all 9 new state Probate Court 
Judge positions be funded through General Fund appropriations commencing on 
January 1, 2027. D. When the terms of all remaining county Probate Court Judges expire on December 
31, 2028, they will be replaced by the number of new state Probate Court Judges necessary to achieve a full complement of 9 state Probate Court Judges. Although not reflected in the text of the bill, the commission also recommended that these new judges be supported by a 2nd law clerk and judicial administrative assistant and by 5 additional court marshals. E. Although not reflected in the text of the bill, the commission also recommended that the judicial branch be authorized to hire an information technology specialist and a facilities manager as soon as possible, and that General Fund appropriations be provided for that purpose, to help the judicial branch prepare for the establishment of the state Probate Court on January 1, 2027. 
Parts B, C and D of the bill direct the Chief Justice of the Supreme Judicial Court to designate one appointed state Probate Court Judge to serve as the Chief Judge of the Probate Court, who is charged with fulfilling administrative duties similar to the administrative duties of the Chief Justice of the Superior Court and Chief Judge of the District Court. These duties include facilitating the transition from the county Probate Court system to the state Probate Court system; creating the statewide Probate Court schedule; ensuring uniformity of court processes and procedures and that emergency matters are prioritized and addressed expediently; securing and ensuring the accessibility and safety of Probate Court facilities; and preparing annual reports on the business of the state Probate Court. 
Parts C and D of the bill direct that state Probate Court proceedings be held in existing county Probate Court facilities if possible and require the Chief Judge of the Probate Court to negotiate leases, contracts or other arrangements between the counties and the judicial branch regarding the use of those facilities. When necessary, state District Court and Superior Court facilities may also be used for Probate Court proceedings. 
Parts B, C and D of the bill preserve the county registries of probate. A. Part B of the bill provides, by statute, for the election of county Registers of Probate under the same terms and conditions applicable to county register of probate elections under the Constitution of Maine, Article VI, Section 6, which will be repealed on the date that this legislation is approved. B. Parts B, C and D of the bill further provide that, as each county transitions to the state Probate Court, that county should continue to retain all fees filed in state Probate Court proceedings in that county to offset the costs of maintaining its county registry of probate and of paying registry staff. These costs include, for example, the cost to maintain the current electronic management system for probate court records that the commission recommended retaining during the multiyear transition to the new state Probate Court system. 
Part C of the bill provides that, beginning January 1, 2027, the Maine Commission on Public Defense Services is responsible for paying and for establishing the minimum 
experience, training and additional qualifications for attorneys appointed to represent 
indigent individuals at public expense in all state and county Probate Court proceedings. 
Although not reflected in the text of the bill, the commission further recommended that the 
Legislature provide new General Fund appropriations to the Maine Commission on Public 
Defense Services to cover the cost of these appointments. 
Parts C and D of the bill require the judicial branch to establish the minimum experience, training and additional qualifications for court-appointed visitors in state Probate Court proceedings and to pay the expenses of both court-appointed visitors and court-appointed guardians ad litem in state Probate Court proceedings when the parties are indigent or the court is allowed or directed by law to pay these expenses. Although not reflected in the text of the bill, the commission recommended that the Legislature provide new General Fund appropriations to the judicial branch to cover the expenses associated with the new requirements. Part C of the bill clarifies that, if a guardian ad litem or visitor is appointed at public expense in a county Probate Court proceeding, the county remains responsible for paying the court-appointed professional's fees. 
Finally, Part D of the bill establishes the Commission to Evaluate the Incorporation of the Probate Court into the Judicial Branch, a 15-member study group composed of the same categories of members appointed to the Commission To Create a Plan To Incorporate the Probate Courts into the Judicial Branch. Part D of the bill directs the new commission to conduct a thorough review of the new state Probate Court system in 2031, which must include, but is not limited to, evaluating whether the number of supported state Probate Court Judge positions proposed is appropriate or should be adjusted; whether the jurisdiction of the state Probate Court, District Court and Superior Court should be adjusted to increase judicial efficiency and access to justice; whether to authorize assignment of state Probate Court Judges to preside over District Court or Superior Court dockets to the same extent that the judges in the District Court and justices in the Superior Court are available for cross assignments; whether additional investments should be made to enhance the compatibility of the Probate Court and judicial branch electronic case management systems; and whether additional opportunities exist to advance toward the ultimate goal of fully incorporating the Probate Court system into the judicial branch. No later than December 31, 2031, the commission is required to submit a report that includes its findings and recommendations, which may include suggested legislation, for presentation to the joint standing committee of the Legislature having jurisdiction over judiciary matters. The joint standing committee may report out legislation related to the report to the 135th Legislature.
Statutes affected: 
Bill Text LD 1766, SP 684: 4.9, 4.57, 4.105, 4.152, 4.201, 4.202, 4.203, 4.251, 4.252, 4.253, 4.301, 4.302, 4.303, 4.304, 4.305, 4.306, 4.307, 4.308, 4.309, 4.310, 4.311, 4.312, 4.567, 4.751, 4.752, 4.754, 4.755, 4.756, 18-C.1, 4.17, 4.18, 4.24, 4.115, 4.1201, 4.1552, 4.1555, 4.1802, 4.1804, 4.1806, 18-C.5, 18-C.9, 21-A.1, 21-A.601