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York County Probate Court v. Atwood
STATE OF MAINE SUPERIOR COURT . ., , . +:. !:,. i. ;,;, " = ,.=. .,, ,
CIVIL ACTION * . .- .> >' , s , .! :!J ' :.
YORK, ss. DOCKET NO. CV-03-041 ?c,.?,- . ) L:!ii i' 1 1 /;i /?:, 12: 25 YORK COUNTY PROBATE COURT,
Plaintiff
JUDGMENT
JAMES D. ATWOOD and BOARD OF YORK COUNTY COMMISSIONERS,
Defendants
Tlys matter comes before the court only on count I of the substituted verified complaint. All other counts and all other actions involving these parties have now been dismissed. (For dismissal of counts I1 and I11 of this action, see this court's order dated January -1-3,-2Q@5,)-The-sole-re-maining issue before the court concerns the applicability of Title 18-A M.R.S.A. § 1-508 and the relative roles and authority of the respective parties in this situation.
There originally was a question concerning the Superior Court's jurisdiction vis-A-vis this matter involving the Probate Court. However, the Supreme Judicial Court has resolved that issue stating:
The Superior Court has the jurisdiction to consider the powers of the Judge of Probate, the Treasurer and the County Commissioners pursuant to section 1-508, and whether, and to what extent, the statute reqt~iresthat the Treasurer act on the certification of the Judge of Probate. 14 M.R.S.A. 5 5301. York Register of Probate v. York County Probate Court, et al., 2004 ME 58, 19, 847 A.2d 395
(emphasis in the orignal). That Court then remanded to the Superior Court "for further proceedings consistent with this opinion."
Background
This matter comes before the court as part of the continuing saga involving the
York County Probate Court -- in the person of the York County Judge of Probate -- and
a variety of county officials including the York County Register of Probate, the County
Treasurer and Board of County Commissioners. The factual background has been set
forth several times before, including most recently by the Law Court, and will not be repeated in detail. It will suffice for purposes of this decision to repeat the first paragraph of the Supreme Judicial Court's background, as follows:
In November of 2000, Diana Dennett was elected to a four-year term as York County Register of Probate, and took office in January of 2001. After months of what Probate Judge Nadeau characterized as deficiencies in Dennett's job performance, on November 1, 2001, Nadeau reassigned several of the duties of the Register to the Deputy Register, Carol Lovejoy. Pursuant to 18-A M.R.S.A. § 1-508 (1998), Nadeau certified this - reassignment in-a- letter- to -Treasurer- James Atwood.-Afk--receiving -
Nadeau's certification and pursuant to section 1-508, Atwood began to pay the salary of the Register of Probate, $42,558, to Lovejoy, and to pay the salary of the Deputy Register, $36,828, to Dennett. On November 27, 2002, again purportedly pursuant to section 1-508, Nadeau sent another certification to Atwood that directed him to reduce Dennett's salary by an additional $14,354.60, and to redistribute that portion of Dennett's salary among other Probate Registry employees. Atwood did not act on Nadeau's directive.
Id, at ¶ 2. The subject of the present decision is the judge's request for an order of this court, in the nature of a writ of mandamus, directing the County Treasurer to comply with the second certification. Whether such order would be appropriate depends upon a determination of the Treasurer's duties under the statute.
Also for background purposes, the pending question must be considered within the context of the greater issue which has given rise to thts series of litigation, namely, the nature and extent of any administrative authority or powers possessed by a Judge of Probate. Under the Probate Code, it is provided that, "The regster shall be subject to
the supervision and authority of the judge of the court in which such register serves."
18-A M.R.S.A. 5 1-305. It also provides that, "Every judge of probate shall constantly
inspect the conduct of the register with respect to his records and the duties of h s
office, and give information in writing of any breach of h s bond to the treasurer of his
county, who shall bring civil action." 18-A M.R.S.A. § 1-507. Therefore, it is clear that
the Legislature has placed upon the prcbate judge an administrative and supervisory
obligation with regard to the register and the operations of the court. What is less clear
is what authority or power, if any, has been invested in these judges to enable them to
meet this obligation.
As the result of the first litigation in h s series, it is clear that the judge may not
use h s contempt powers for administrative purposes. It also is clear from the
Constitution that the judge cannot remove a register from office since both the judge -- - a n d regsterare officials whose terms of office are setby the Constitution_(Me.Const.
art. VII, 5 6), and, as a result, neither may be removed from office except by
impeachment or address of the Lepslature. Opinion of the Justices, 343 A.2d 196 (Me.
1975). But despite the fact that the judge cannot remove the register from office, section
1-508 might give the judge some leverage in administrative matters, depending on
whether the judge can count on the salary adjustment being made.
Discussion
Before addressing the merits, the court must consider the defendants' argument
that count I is now moot because the Register of Probate in York County did not run for
re-election and is no longer in office. The court disagrees for two reasons. First, as
noted by the Supreme Judicial Court, the issue is a serious one which is very likely to be
repeated. The parties deserve a decision on the issue even if it would have no practical
significance as far as the previous register at h s time. Second, whether or not the previous register is a party, the issue of whether the treasurer is required to act upon the judge's certification remains a live issue in this case since the second set of salary adjustments have not taken place. For both reasons, the court will address the issue.
Title 18-A M.R.S.A. J€ 1-508 reads:
When a register is unable to perform h s duties or neglects them, the judge shall certify such inability or neglect to the county treasurer, the time of its commencement and termination, and what person has performed the duties for the time. Such person shall be paid by the treasurer in proportion to the time that he has served and the amount shall be deducted from the register's salary.
The Supreme Judicial Court has already commented with regard to section 1-508 that, "[Tlhere is no statutory authority for a Judge of Probate or Probate Court todirectly reduce or redistribute the salary of a register of probate. The statute grants that authority only to the County Treasurer." York Register of Probate at ¶ 19. The issue is whether the judge may accomplish the same end indirectly through his certification, depending upon whether the county treasurer has any discretion.
In order to trigger the procedures set forth in section 1-508, someone has to determine that the register is unable to perform his duties or is neglecting those duties. Though not stated, it is implicit in the statute that this someone would be the judge, who then would make the certification to the county treasurer. To that extent, the process is within the control of the judge. However, once the certification is made, the judge has no further authority or role in the process. The judge argues that the treasurer has no discretion with regard to the certification and must make the adjustments in salary as certified. As the plaintiff argues, the statute uses the word "shall" twice, indicating that the treasurer's actions are mandatory or ministerial, without any discretionary element. However, this may depend upon the circumstances.
Ordinarily, if a register becomes unable to perform h s duties or neglects them or is absent or is there is a vacancy in the office, the Probate Code anticipates that the deputy register of probate would take the register's place and act as register for all purposes. 18-A M.R.S.A. 5 1-506. If there is a deputy, he is appointed by the register and has all the same authority in terms of performing the duties of the register. The deputy gives the same bond to the county as does the register. Neither ffice wold be subject to collective bargaining. The judge has the authority to appoint a register pro tempore, but only in cases where there is no deputy or where there is a vacancy in the office, as opposed to an absence from office.
Reading sections 1-506 and 1-508 together, if the judge believes the register is unable to perform his duties or neglects them, the deputy would assume those duties and the judge would certify this fact to the treasurer so that the salaries may be adjusted. T h s is precisely what happened in the first certification in the present case. In that situation, the provisions of section 1-508 allow the treasurer to make the adjustment without requiring the usual authorization of the county commissioners. 30-
A M.R.S.A. 5 173 & 102.
In the event that there is no deputy register, the judge would appoint a suitable person to fill in for the reglster until the register resumes his duties or another is qualified. However, the statutes do not seem to anticipate the type of reassignment of the register's duties among several other registry staff members such as was done in the present case. Unlike the deputy register, other registry employees do not have the same statutory authority to act on behalf of the register, are h r e d through an entirely different process, and may be worlung, as in York County, under a collective bargaining agreement. This is a more complex situation and much more likely to entail the exercise of the county commissioners' final authority over the operation of county offices, unless there is a County Personnel Board. 30-A M.R.S.A. 5 102. Therefore, the court concludes that under these circumstances - as represented by the second certification - tl-te county treasurer would be well withn h s responsibilities and discretion to at least seek guidance from the county commissioners, and implementation of the judge's certification should not be an automatic, ministerial act.
TII summary, the court finds the stah~toryprocedures have been properly and appropriately followed in this case. When the judge made his determination under section 1-508 and made his certification to the treasurer indicating the deputy's assumption of many of the register's duties, the treasurer implemented that certification and made the salary adjustments. However, when the certification involved regstry employees other than the deputy, the treasurer properly witl-theld action and sought guidance from the county commissioners.
Inligl~t. of the-foregoing,-the-entry-willbe: - - - - - . .- -- - - -
Judgment on count I for the defendants.
Dated: May /D ,2005 S. l r l c S h ~ dtrup s Justice, Superior Court