In The Law Tribune front-page report entitled “Probate Chief Seeks More Muscle” (May 7, 2007), I was surprised to read that Probate Court Administrator James Lawlor could only give two reasons for his quest for more power.
When the General Assembly’s Program Review and Investigations Committee looked at Mr. Lawlor’s complaint that he lacked authority, the committee recommended the administrator and the Probate Assembly examine the issue of the administrator’s enforcement authority “for situations that do not rise to the level of formal referral to the Council on Probate Judicial Conduct.”
Just over a year ago, the then president-judge of the Probate Assembly, Hon. Joseph Marino, appointed an ad hoc committee to comply with the recommendations of the Program Review Committee. The ad hoc committee has worked diligently for the past year and many of its recommendations have been adopted and implemented by the Probate Assembly and the probate court administrator. So far, the committee has failed to reach consensus on the question of more power for the administrator.
When Mr. Lawlor met with the ad hoc committee, the two reasons he gave were exactly the same two he cited when he spoke with The Law Tribune. Both examples given by Lawlor are clearly addressed in the presently existing statutes.
In 1993, when the Office of the Probate Court Administrator was charged with providing training for newly elected judges, section 45a-27a authorized the referral of any judge who fails to complete the required training to the Council on Probate Judicial Conduct. Also in 1993, another statute, 45a-77, was amended to give the administrator power to set the hours of operation of the courts by regulation. Yet Lawlor and his predecessors have never exercised either authority. Why does he now need more power when for 14 years he and his predecessors have failed to use the powers they have held all along?
The last thing Mr. Lawlor wants is to refer a judge to the Council on Probate Judicial Conduct because it is a totally independent body over which he has no control. If this is not the reason, then why does the proposed bill (Raised Bill 1272) create a whole new body where he appoints one of the judges and from which there is no appeal?
Probate Court administrators, including Mr. Lawlor, have never proposed any regulations. Is this because they would then have to be accountable to the legislature? If not, then why does the proposed bill contain a provision to remove the requirement that any regulations be adopted in compliance with the Administrative Procedures Act?
It appears Mr. Lawlor has misinterpreted the statutory direction “… may attend to any matters which [he] deems necessary for the efficient operation of the courts of probate …” to mean that all the elected judges report to him or be subject to his punishment, while the court in Adams v. Rubinow thought it referred only to establishing “efficient administrative, accounting and record-keeping procedures.”
The Connecticut Constitution requires that probate judges be elected by the people of the districts to serve four-year terms. To give an appointed bureaucrat the absolute power to remove a judge’s authority is clearly unconstitutional. If the legislature wants to make all of the elected probate judges into a bunch of appointed clerical employees subservient to an appointed bureaucrat in the Judicial Department, then it should also do away with the Connecticut Constitution.
There is yet another proposed bill (Substitute House Bill 7429 that ostensibly deals with “Judicial Branch Openness”) that would remove the requirement that the chief justice appoint the probate court administrator from the sitting probate judges. That requirement has been in the statutes since 1974. Before that time, the administrator was a Superior Court judge.
What possible reason could there be to remove this requirement? I hope the General Assembly will again recognize that the administrator’s quest for more power comes from his misconception of the role of the office and that the legislature will again this year reject his legislative initiatives as they have in the past.
Russell Kimes is the probate judge in New Canaan.