It is High Time for Court Reform – Current Process Invites Problems

In his recent opinion piece, Portland attorney, Peter Murray, has written a thoughtful, serious analysis of troubling symptoms coming from Maine’s probate courts, along with a call for reform and his thoughts about how to do probate reform. In so doing, he appears to use as inspiration the recently reported symptoms of the Biddeford Probate Court and Judge Nadeau. It is encouraging for members of the public to hear a distinguished lawyer “thinking out loud” about any form of court reform, and Mr. Murray is to be congratulated for his courage and public spirited effort. However, in our view, there is a great need for a much broader, more extensive public conversation about court reform, a conversation not limited to just probate courts, nor limited in participation to the “legal guild” talking to itself.

Our observation is that there are troubling symptoms pouring forth from other types of courts, as well that merit public conversation. We are aware of widespread, public dissatisfaction with Maine’s family courts. There are also noises calling for reform of criminal justice systems. While not claiming expertise in these matters – to us (and many others) there appears to be considerable symptomatic smoke in these various court sub-systems. Is there also fire? In this connection, it should also be noted that Maine courts seem to get consistently low grades (F) in national surveys, and also that a numerical grade of 43% (out of 100%) is not a brilliant grade. 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 take charge? Who is to investigate, what is the nature of the problem(s) and who is to take responsibility for systemic repairs or remodeling?

To many, there is a problem with simply correcting a symptom. As an approach, it often ignores other fault lines in a total system and is inadequate for any complex systemic problem-solving. There is also another problem-solving danger for court reform: that of attempted “solutions” to such problems getting trapped by the perspective of a particular professional culture. An outside evaluation of the entire system and how it is working for client users, the public, is needed. We would ask the decidedly, populist question: who owns the court system (probate and otherwise)? For whose benefit are they working? How do taxpayers fit into making the change-decisions involved in court reform? Many people today will feel that a “guild knows best” approach is elitist, exclusionary and wrong. These comments are not intended to be disrespectful of Mr. Murray. As we move forward, there will be more and more populist questions asked by a consumer-oriented public that is used to the open systems of media. Paternalistic, professional answers by themselves will not suffice.

In this regard, Mr. Murray’s remark that voting invites “problems for judges”, comes across as distinctly exclusionary. With all due respect, it is “tone deaf” for populist times. No question but voting for judges does invite problems. The “root” problem he proposes to avoid is called “democracy”. Democracy is a messy business. However, many would say: so is the current process admired by Murray for the selection of district and superior court judges. It operates below the public’s radar: Behind closed doors, oligarchic bar grandees select judicial nominees, these are then privately sold to the governor and then rubber-stamped by the legislature that is presented a near ‘fait accompli‘ the tidal movement of which is difficult (nearly impossible) to reverse. The current judicial appointment process doesn’t inspire awe or respect in the public who “consume” court service. The potential for cronyism and patronage in the current opaque process is nearly unlimited.

We would suggest to Mr. Murray et al that there is a serious need for an in-depth look at the total court system, that there is a need for a thoughtful, careful 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- just as an example. To us, Mr. Murray appears to be prescribing a “band- aid” to cover probate courts. The public wants and deserves much more.

Mr. Murray has made a brave beginning to a much needed court reform “conversation” in the press recently. For this he deserves our thanks. However, this “conversation” needs to continue and expand bringing in those civilians who use (and pay for the courts) while being denied the input of normal ownership. Those “who pay the piper” ought to have something to say about the “tunes” that get played. We all – civilians and legal professionals alike – need technical help from out of state consultants in how best to get our arms around the problem and how to set direction for the best interests of the public.

We sincerely ask that the press continue this much needed conversation about Maine court reform.

MeGAL has been working towards reforming Family Court vendors (Guardians ad litem and the use of ‘court experts’) as well as Family Courts. We can be contacted at MeGALalert@gmail.com or finding us on Facebook.

Maine received an ( F ) recently in many aspects of our state government. Regarding Judicial Accountability Maine received a score of 43 ( F ). This is not the first time Maine has received an ( F ). For further information about Maine and other states follow this [ LINK ].