To The Editor
Your January 30 article about probate judges and membership in the bar left out what I consider to be an important factor.
First of all, I must tell you that I do not believe Connecticut probate judges need to be lawyers. As a lawyer, I did trust and estate work, but in later years the majority of my practice was as a trial lawyer. I served in a part-time, moonlighting job as judge of probate for the District of Canton for 36 years. I may be prejudiced, but I believe the fact that it is the citizens of a probate district who elect the probate judge, strongly suggests that the citizens are completely satisfied with the judge’s qualifications. Especially in the smaller districts, the judges qualifications regarding education, experience, honesty, humaneness, etc., are well-known in the community and form the basis for the vote.
Most of the work performed by the probate courts in Connecticut is, as your article notes, non-adversarial and involves the sort of recordkeeping, filing and certifying that is also performed by a town clerk, and there is no requirement that a town clerk be a lawyer. There are other officials, such as registrar of voters, zoning and planning officials and members of various boards (who render judgments), and others who deal with the law intensively, but who are also not lawyers.
The factor your article missed, I believe, is that no judgment by a probate judge is final. On the one hand probate court proceedings are informal and do not always follow the strict rules of procedure required by other courts. Alternatively, other courts render judgments that are final, subject only to review of clear errors. Any decision by a probate judge can be appealed to the Superior Court for a trial de novo. This means that the probate judge’s opinion is a nullity, it has no force and effect at all. The Superior Court acts as a probate court in hearing and rendering an entirely separate decision. This is the check and balance which the Connecticut law has, for centuries, given to the informality of the probate court proceedings.
Any claim that the de novo appeal procedure requires duplicate hearings, is false. The party who is unhappy with the idea that a non-lawyer judge is to make the decision, merely does not spend a lot time in a contest in the probate court, but waits for the decision, files an appeal and does all of the contesting in the Superior Court. In fact, smart lawyers often use this procedure for discovery purposes, letting the other side spill out all of its information and law, to better prepare the smart lawyer for the real contest in Superior Court.
Comparing Connecticut with other states is a risky business. The laws governing the procedures and requirements of the probate court vary widely by state. Under the laws and procedures of Connecticut, non-lawyer judges can have the qualification, so a law degree or membership in the bar requirement is not necessary.
You should also know that the Connecticut Probate System has procedures in place so that a party who feels that a particular probate judge should not hold the hearing and make the decision in a particular matter or case can request that another judge be substituted for that particular matter or case. Therefore, a person who wants a lawyer judge can use this procedure to have one. In my years as probate judge, I did serve as substitute for non-lawyer judges on a few occasions.
I hope this helps you to better understand the excellent Probate Court System we have in Connecticut. The citizens are not objecting, why should everybody else?
Raymond B. Green