Probate Court under scrutiny

The Connecticut Probate Court System, established in 1666, has functioned mostly unchanged for more than 300 years. Recently, questions have been raised about the efficiency and financial stability of the probate courts, which have jurisdiction over probate of wills, decisions on conservators or guardians, adoptions, custody and name changes. After careful scrutiny of the probate system, the Program Review and Investigations Committee, a bipartisan group of 12 legislators mandated to evaluate state programs, has generated a list of recommended actions. Connecticut lawmakers must now review these recommendations in an attempt to sculpt legislation to implement any changes.

Presently, there are 123 probate districts that serve the 169 municipalities of Connecticut. Each district has a probate judge elected to a four-year-term. There are no mandated requirements to assume this role, but probate judges must pursue continuing education during their tenure. The overall court is directed by the Probate Court Administrator, Judge James J. Lawlor; this position is an appointment of the Supreme Court Justice. Despite this, individual probate judges can determine their own hours and choose their own staff.

The probate courts are self-sustaining, generating adequate revenues from fees. Probate judges are compensated based on a statutory weighted-work load formula or WWL. Although not all judges are full time, each is entitled to full healthcare coverage.

The rising costs of health care have begun to strain the Probate Administration Fund or PAF. In addition, there has been a consistent rise in the number of cases handled by the probate courts. Some courts cannot bring in enough money to support themselves. These courts, mostly urban, are inundated by indigent cases or cases that demand excessive resources. Thus, funds from the PAF must be used to meet the demands of those over-burdened courts. The dire prediction that the probate court system may outstrip its resources by 2010 has fueled the search for reforms.

One of the most controversial issues facing the Probate Court System concerns the move to consolidate individual courts. Maintaining the 123 probate courts requires funds, in particular for compensation and benefits. Some of the judges work parttime, but they are still entitled to the same benefit package as full-time judges. In reviewing the WWL of individual courts, a number of courts have WWLs well below the state median. In some of these smaller courts, however, the median compensation per WWL is almost five times that of the larger courts. In an effort to address these disparities, the idea of consolidating some courts arose. For those courts with reduced WWLs, condensing the work and personnel of a number of courts would increase the WWL while reducing the overhead of benefits and compensation.

This suggestion has met with fierce opposition from some of the probate judges. Orange Probate Judge John Carangelo said, "It is my ultimate goal that this system is preserved."

Carangelo praised the "informal" setting of probate courts, maintaining, "You lose a loved one, you want to come in and be a person, not a number … We deal with sensitive issues."

Brendan Sharkey, co-chairman of the Program Review Committee, and a state representative from Hamden, said, "When people are going through these situations, they prefer to have a local presence."

Other judges lauded the accessibility and convenience of the present court system. Bethany Probate Judge, Guy Yale, supported the personal nature of his court. "Many times people don't even have lawyers."

Woodbridge acting Probate Judge, Clifford Hoyle, advocated the present system, saying, "In a contested case, it doesn't take years."

Carangelo expounded further on the advantages of the present system. "Judges are available 24 hours, 7 days a week. We take pride in our system, and we do a lot more things than the public is aware of."

Carangelo has doubts about the looming financial crisis, as well. "Although they have projected a financial crisis, every year we are making money."

Despite Carangelo's skepticism, the analysis of the financial health of the probate system by the review committee projects a deficit of more than $7 million by 2010. This projection is based on the eventual elimination of the succession tax in the coming years. In addition, the cost of covering indigent cases is estimated to rise. Add to these the increasing burden of the rising cost of benefit packages, and the resources of the probate system may become distressed.

Several recommendations developed by the review committee are directed at determining the best way to improve the financial outlook for the Probate Court System. To begin with, the review committee has suggested that a professional financial consultant should be contracted to explore the optimal method for establishing compensation and benefits. The recommendations also suggest establishing minimal standards for hours of operation, staffing, staff salaries and training, and WWL. Additionally, the recommendations call for state funding to cover indigent court costs.

Concerning the most controversial issue, consolidation, the review committee suggested that a list of courts be prepared that present the best opportunities for voluntary consolidation to meet the minimum WWL standards. Sharkey pointed out that consolidation has come about in a number of communities voluntarily. "Since 1999, 25 communities have already chosen to consolidate into nine courts."

Michael Lawlor, co-chairman of the Judiciary Committee and a state representative of East Haven, said that Judge Lawlor has already initiated a form of consolidation by implementing the New Haven Children's Court, a probate court dedicated to the needs of children. "All the judges think it's great. The Children's Court could be a model of how probate courts could survive."

Some probate judges feel that these changes are an indirect pressure to consolidate. Yale was concerned that the change in WWL and hours of operation would put an undue burden on smaller courts, forcing them to consolidate to meet these mandates. "Smaller courts … wouldn't be able to justify hiring a judge."

Another major concern in the legislature is the professionalism and effectiveness of the position of probate judge, the only Connecticut judge who attains his position by election. The number of complicated cases surfacing in probate courts is rising. Yet probate judges are not required to have any legal training. Some have called for all probate judges to be lawyers, but Carangelo does not agree.

"There are a lot of judges that have been non-lawyers, and they are very knowledgeable. These judges do a fantastic job."

Vicki Nardello, a member of the Review Committee and a state representative for Bethany, said that lawyers and non-lawyers perform their duties as probate judges equally competently.

"There are no more complaints against non-lawyers than against lawyers."

Some critics of the Probate Court System have expressed concern about the potential for abuse by probate judges, as well. Not only are probate judges elected, but many have other jobs that may cause a conflict of interest, such as private law practices.

Carangelo took exception to this criticism, saying, "We have a responsibility to the public to not have a conflict of interest. We recuse ourselves."

Sharkey was not overly worried, but cautioned, "There are a lot of anecdotal stories. There might be a scandal out there that has not yet come to light."

The review committee attempted to address these professional concerns, as well. The recommendations put forth call for the development of a curriculum and an examination that judges would have to complete to demonstrate competency. This would only apply to new judges; current judges would be "grandfathered" in. Additionally, the scope of the training and continuing education for judges should be re-examined, as well as enforced.

There is a long road ahead before these reforms can be implemented. Public hearings need to be held to allow citizens to voice their concerns. Appropriate committees must develop legislation to implement any changes. Both the Judiciary Committee and the Program Review Committee can generate bills. Any legislation must then go before the General Assembly for a vote.

Nardello was concerned that there wouldn't be enough time to accomplish all of this. 'This will be the shortest session in I don't know how many years."

Michael Lawlor also expressed concern that the legislators would not successfully impose any changes. He felt the stalemate would continue until the probate judges themselves resolved their differences. At least, he said, "Until they either run out of money or there's a scandal."

Lawlor said, "All it takes is one court and one judge to be the catalyst. Connecticut has had its fill of scandals, and there is going to be zero tolerance."