State senate rejects bill to establish direct state oversight of probate judges
By Sabrina Martin, Bangor Daily News Staff
Despite coming under scrutiny in the past year because of Hancock County’s suspended probate judge, a bill to reform how probate judge positions are filled and overseen was rejected March 26 by the state Senate.
With the rejection of the proposed legislation, probate judges in Maine will continue to be part-time elected county officials with relatively little oversight.
The issue has drawn heightened interest in Hancock County, where the elected probate judge, William B. Blaisdell IV has been suspended — but only after being found in contempt of court for not paying court-ordered child support in his divorce.
And earlier this month, to make things worse, an arrest warrant was issued for Blaisdell after he failed to turn up at a hearing in Waldo County, where his divorce is being handled because of his courthouse connections in Hancock County. He later turned himself into Hancock County jail on March 17 and was released after posting a $16,929 bail — the amount of child support he owed.
Despite all this, though he remains under suspension, Blaisdell has not been removed from office and still is listed as Hancock County’s probate judge on the county’s website.
Mark Brewer, chair of the University of Maine’s political science department, said the Blaisdell case has revealed a “weak spot” in how the state selects its part-time probate judges, positions that are sometimes filled in low-profile elections that attract little public scrutiny.
Legal problems a probate judge might encounter are only part of the picture. Concerns also have been raised around how part-time probate judges, unlike any other state judges, can continue to work as private lawyers and as such are exempt from some parts of the state’s judicial code of conduct.
“One of the reasons I voted for the bill was because it would give the judiciary more power to police those types of situations,” Democratic Sen. Joe Baldacci of Bangor said, referring to Blaisdell. “Right now, the judiciary does not have power to police the probate court judges like that.”
Baldacci said the bill would “professionalize and standardize” Maine’s current probate system, which is now independent of the state’s judicial branch.
The bill narrowly failed in the state Senate on March 24, only to pass the House the following day. But after failing a second Senate vote, the bill is effectively dead, Baldacci said.
Maine’s judicial branch, which oversees and operates the state court system, is not permitted to remove elected judges from office, however they can recommend their dismissal to the Legislature.
Under the Maine Constitution, a sitting probate judge can be removed through two legislative actions: impeachment or a formal address to the governor, neither of which has ever been used to remove a probate judge.
That historic lack of disciplinary action raises “concerns with the legislative oversight mechanisms that are in place,” said Brewer. “Maybe not necessarily the mechanism, but the Legislature’s either ability to or willingness to use it.”
The state’s judicial conduct committee previously urged the Supreme Court to recommend the Legislature remove Blaisdell. The court declined, and opted instead for suspension.
Blaisdell’s term will expire at the end of this year.
Matthew Foster, a former Maine district attorney whose ethics also came under criticism after he lied during a 2022 candidates’ forum about whether he had ever been investigated by the state attorney general’s office, is running for his seat. Foster went on to lose his re-election bid.
No other candidate filed to run for probate judge in the June political party primaries, though an independent candidate could still contest the seat in November’s general election.|
Probate judges — who often preside over sensitive, familial matters — are frequently elected in low-profile, uncontested races. That can be a problem, Brewer said. Many of the cases probate judges handle are shielded from public view, involving guardianships and conservatorships, adoptions and name changes, trusts and estates.
“You want to have confidence in the judge who is making these decisions for you and your family members,” said Deidre Smith, director of litigation at Pine Tree Legal Assistance. “If you’re either reading about them in the paper or hearing about them being a litigator in some other type of case, it’s going to undermine people’s confidence in the courts that are deciding their case.”
Maine’s part-time probate judges are the only judges in the state permitted to serve on the bench while maintaining a private law practice.
Smith, who testified in favor of the bill during a January committee hearing, supports making probate judges full-time, appointed state officials. If probate judges were full-time, there wouldn’t be a need for judges to supplement their income with private practice, she said.
“The role of a judge and the role of an attorney are fundamentally incompatible,” Smith said. “In the eyes of the public, a part-time judge is a full-time judge.”
Smith said she’s aware of cases where judges used their judicial authority to benefit a client: one ran a background check on an opposing party and another called a presiding judge at home.
“The whole other problem with having a law practice on the side: they’re business owners,” Smith said “They have to be responsible for running a business.”
In 2022, before Blaisdell’s suspension, Hancock County budgeted $31,653 for his position, according to county budget documents.
Some experts have proposed the Missouri Plan — informally known as the “merit plan”— in which a governor appoints a judge who serves a set term before facing voters in a retention election.
Maine’s probate court system has effectively been stuck in 1855, when a constitutional amendment turned probate judges into elected county officials, Smith said.
Yet in 1967, voters approved a separate amendment directing that probate courts be restructured with full-time judges. Nearly 60 years later, that has not happened.
“The voters have spoken,” Smith said. “That sort of should be the end of it, right?”
But following decades of studies, commissions and bills, it still hasn’t happened. A similar bill to the current one passed the Legislature in 2022 but died when funding was never appropriated, an ongoing challenge for the reform movement.
Various reform efforts have previously failed because of the cost of incorporating the probate court system into the Maine Judiciary, though the transition would relieve the county’s fiscal responsibility, Smith said.
As it stands, regardless of a county’s geographic size or population, each Maine county has one part-time probate judge. That’s because, for the most part, there aren’t enough probate matters to employ a full-time judge in every county, Smith said.
But that arrangement troubles some experts.
“There’s the risk that part-time judges take advantage of their judicial authority to benefit a client, the temptation may be there,” Smith said. “We want judges to be devoted judges. We don’t want them to be distracted from their judicial duties.”
Attorneys may feel loyalty, consciously or not, to their clients, Smith said. For lawyers, that’s part of their job. For judges, it can undermine the court’s appearance of impartiality.
“An attorney is an advocate, not a neutral arbiter,” Brewer said. “Asking or allowing one individual to do both of those things seems to set up a more general conflict of interest.”
Smith encountered a guardianship matter in which her opposing counsel won a probate judgeship while the case was pending, yet continued to represent his client for months.
In a separate matter, Smith’s clinic represented a wife in a contentious divorce while opposing counsel — the husband’s attorney — was a probate judge before whom her clinic had other active cases. She did not identify the opposing lawyer but described him as “highly aggressive” during negotiations, and said it felt “deeply uncomfortable.”
In both cases, each of the judges’ actions were permissible under Maine law.