Probate Reform in Connecticut: a Historical Perspective

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 78 Pg. 65
Pages65
Connecticut Bar Journal
Volume 78.

78 CBJ 65. PROBATE REFORM IN CONNECTICUT: A HISTORICAL PERSPECTIVE

CONNECTICUT BAR JOURNAL
VOLUME 78, NO. 2

PROBATE REFORM IN CONNECTICUT: A HISTORICAL PERSPECTIVE

BY THOMAS E. GAFFEY*

On April 27, 2004 the Connecticut Probate Assembly held its usual annual meeting at the Supreme Court in Hartford. In what is usually a largely ceremonial and social event, probate judges from around the state met in the grandeur of the courtroom of the state's highest court. As is typically the case, the meeting began with an address by Chief Justice William J. Sullivan. On this occasion, however, the Chief Justice's remarks were anything but usual. While praising their work, he noted that the probate courts face an "extremely serious problem" concerning the courts' future and financing. He noted that, due to increasing costs, the courts would soon be operating at a deficit. He expressed the opinion that the system would not be able to maintain the current number of courts, noting that nearly 50% of the courts handle only 10% of the work of the system. Chief Justice Sullivan indicated that he was directing the Probate Court Administrator to present a workable plan for the probate court system by October 1, 2004. He further stated that he would contact legislative leaders and inform them of his belief that they should, in the 2005 legislative session, look into the problems of the probate courts. He encouraged the judges of probate to participate in the formulation of a viable plan: "You have it within your power to fix the problem. Do it or someone else, such as the Connecticut Legislature, will do it for you."(fn1)

Viewed from the vantage point in 2005, the probate courts of Connecticut are unique, even to the point of seeming peculiar. The probate courts aside, Connecticut has a unified court system: one statewide system under a centralized authority. The probate courts, on the other hand, consist of one hundred twenty three largely independent and highly localized courts.

* Chief Counsel, Office of the Probate Court Administrator.

1 William J. Sullivan, Out of Control Costs Imperil Connecticut's Probate Court System, CONN. L. TRIB., May 24, 2004, at 23.

Although all other judges are appointed, judges of probate are elected. While all other judges must be attorneys, any elector may serve as a probate judge. Although all other judges receive salaries from the state, probate judges are compensated, and the operations of the probate courts funded, through fees charged to the users of the probate courts and the income of the judges is based upon the fees which they collect.

Calls for reform of this system have been many and frequent over the three hundred year history of the probate courts, although with little effect. In order to understand how the courts have come to be as they are, and to more fully inform the debate concerning possible reform, it is helpful to look at the historical development of the probate courts in the context of the evolution of the Connecticut judiciary as a whole.

I. THE CONSTITUTIONAL COURTS

In earliest colonial days, both legislative and judicial powers were vested in the General Court.(fn2) Gradually judicial authority was delegated, first to "assistants," who were members of the General Court and who were empowered to hold "particular courts."(fn3) In 1665 the charter of Charles II substituted the General Assembly for the General Court.(fn4)

The four original counties were established in 1666, and in each of them was established a county court.(fn5) In 1718 the courts of assistants became the "Superior Court of Judicature over this Colony" with the county courts being the inferior courts.(fn6)

The Superior Court had appellate jurisdiction over the inferior courts, but it was the General Assembly that was the "dernier resort" with respect to errors of law. This changed in 1784, when the "Supreme Court of Errors" was established. It was given jurisdiction of all judgments of the Superior

2 Preface, 1 Conn. iii (1817).

3 Styles v. Tyler, 64 Conn. 432, 445 (1894).

4 Preface, 1 Conn. at ix-x

5 Id. at x.

6 Slyles, 64 Conn. at 445.

Court that were "erroneously or mistakenly adjudged and determined."(fn7) In 1806 it was provided that there would be a chief judge and eight judges of the Superior Court; who would collectively constitute the Supreme Court of Errors, any five of them being sufficient for a quorum.(fn8)

All courts were, at this point, established by act of the General Assembly: "The judicial power was only delegated; it still belonged to the legislature, and its exercise could be assumed at any moment and in any case; the jurisdiction, the existence of every court, the tenure of office of every judge, the finality of every judgment, was still at the mercy of the legislature."(fn9)

The Constitution of 1818 changed this picture, dividing the state government into three distinct branches.(fn10) The whole judicial power of the State was vested in the courts, subject only to those limitations contained in the Constitution itself.(fn11) Two courts were established in the Constitution, one with a supreme jurisdiction in the trial of causes (the Superior Court), and one with a supreme and final jurisdiction in determining in the last resort the principles of law involved in the trial of causes (the Supreme Court of Errors). Inferior courts could be established from time to time by the legislature as deemed necessary.(fn12)

Under the Constitution of 1818, the judges of the Superior Court and the Supreme Court of Errors were appointed by the General Assembly.(fn13) An 1880 amendment provided for the nomination of judges by the governor and appointment by the General Assembly.(fn14)

By 1930 the Superior Court consisted of eighteen judges, including the judges of the Supreme Court of Errors.(fn15) The Supreme Court of Errors consisted of one Chief Justice and

7 Id. at 446.

8 Id. at 448.

9 Id.

10 Id. at 444.

11 Id. at 449-450.

12 Id.

13 CONN. CONST. of 1818, art. fifth, §3.

14 CONN. CONST. of 1818, amend. art. XXVI.

15 CONN. GEN. STAT. § 5328 (1930 Rev.).

four associate justices, each of whom was, at the time of appointment, a judge of the Superior Court.(fn16)

To this point there was little in the way of centralized administrative authority. The judges of the Superior Court (including the judges of the Supreme Court of Errors), held an annual meeting presided over by the Chief Justice.(fn17) The Chief Justice could also call special meetings as necessary.(fn18) At such meetings the judges could adopt orders and rules for practice and procedure in the courts.(fn19)

By virtue of a statute enacted in 1937, the judges of the Superior Court were authorized to appoint an executive secretary. The executive secretary was directed to maintain records as to the expenses of conducting the judicial department, and to perform such duties with reference to the administration of the judicial department as the judges of the Superior Court might direct.(fn20)

A "judicial council" was established in 1927,(fn21) and its function was to perform "a continuous study of the organization, rules and methods of procedure and practice of the judicial system of the state, the work accomplished and the results produced by that system."(fn22) The council consisted of the Chief Justice or his designee, a judge or former judge of the Superior Court, a judge of the Court of Common Pleas, a judge of a city court, (each appointed by the Chief Justice), four practicing attorneys and a state's attorney, appointed by the governor. The council was to report biennially to the governor "upon the work of the various branches of the judicial system, together with any recommendations it may have in connection therewith."(fn23)

In 1953 the Chief Justice was designated as the "administrative head of the judicial department, subject to the statutes

16 CONN. GEN. STAT. § 5373 (1930 Rev.).

17 CONN. GEN. STAT. § 5357 (1930 Rev.).

18 CONN. GEN. STAT. § 5358 (1930 Rev.).

19 CONN. GEN. STAT. §§ 5358, 5359 (1930 Rev.).

20 CONN. GEN. STAT. § 823d (1937 Supp.).

21 Allyn Larrabie Brown, Jr. and Gregory Hancock Doherty, Connecticut Courts of Limited Jurisdiction - A Survey, 14 CONN. B.J. 230, 233 (1940).

22 CONN. GEN. STAT. § 5362 (1930 Rev.).

23 Id., The council was abolished in 1975. 1975 Conn. Pub. Acts 567, §§ 76,80.

and rules of court."(fn24)

In 1957, a number of changes were enacted concerning the organization of the judiciary, including:

The judicial department of the state shall consist of the supreme court of errors, the superior court, the court of common pleas, the juvenile court, the town, city, borough and police courts, the trial justice courts, justice of the peace courts, the traffic court of the district of Danbury and the probate courts.(fn25)

The Chief Justice was designated as "the administrative director of the judicial department and responsible for the efficient operation thereof and of its constituent courts as defined in section 1 hereof and for the expeditious dispatch of litigation therein and the proper conduct of business of the courts."(fn26)

Each of the constituent courts was to have a chief judge. The superior court, court of common pleas, the probate, municipal and justice courts had chief judges appointed by the Chief Justice to serve at his pleasure.(fn27) The chief judge of each court was responsible for the efficient operation of that court.(fn28) The Chief Justice was to meet periodically with the chief judges.(fn29)

The administration of nonjudicial business of the judicial department was assigned to the executive secretary.(fn30) His or her duties included auditing and accounting, preparation of the judicial department budget, payroll, purchasing, examination of the administrative procedures of the various courts...

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