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Lawyers Journal

Safety, security, constitutional imperative in the Probate and Family Court

Chief Justice Paula Carey addressed the House of Delegates at our kick-off meeting for the 2011-12 association year at UMass-Dartmouth with this thoughtful yet chilling message: "We can no longer deliver meaningful justice in our courts and cannot sustain any cuts. … [W]e have hit the wall. … [W]ith our current budget, we will be in a constitutional crisis."

The Probate and Family Court, along with the District Court, the Boston Municipal Court and the Housing Court are the epicenters of citizen interaction with the justice system, and consequently, the judicial "fault lines" for sudden and explosive conduct.

A couple of recent incidents from Connecticut and New Hampshire bring home the risks that we confront every day in these Massachusetts courts.

Richard Shenkman, a 62-year-old advertising executive, was enraged over a Connecticut family court's decree awarding his former spouse, Nancy Tyler, $100,000 in attorney's fees or (if not paid) title and possession of their South Windsor home. Tyler was also awarded title to their beach house in the Niantic section of East Lyme.

Unhappy with the results from court proceedings, Shenkman took matters into his own, deranged hands. He burned down the beach house and then kidnapped Tyler, brought her to the South Windsor home, rigged the structure with propane-fueled explosive devices, and demanded that police send a Catholic priest to deliver Tyler last rites. Tyler somehow escaped unharmed, so Shenkman burned this house down too. His criminal defense lawyer is said to plan a mental-illness defense.

Thomas Ball was a divorced dad from Holden, Mass., who was an active member of the so-called fathers' rights movement. He viewed the courts as corrupt, ruthless and hopelessly biased in favor of mothers. He reportedly wrote that men were no longer "fathers," but only "piggy banks." After 10 years of unsuccessful litigation over custody, visitation rights and child support, Ball doused himself with gasoline and ignited himself at the main door of the county courthouse in Keene, N.H.

MBA Past President Denise Squillante is a renowned family law practitioner in Bristol County. Few individuals better appreciate the risks and hazards that are ever present in the corridors and steps of the Probate and Family Courts than Denise. She raised the clarion call about these risks many times, pointing to the toxic mix of emotionally charged, deeply personal disputes and the vast numbers of self-represented litigants.1 President Squillante in her colorful and vibrant New England accent predicted that litigants "will take it to the streets."

Chief Justice Carey told the House of Delegates that "judges [consistently take] the bench … with no court officer."
We need to ask what will happen to judges or to other persons present in the courts when an angry Richard Shenkman or Thomas Ball show up ready to create mayhem.

Judges could just refuse to take the bench without a court officer. But who among the 100 or more people who took time off from work or arranged for daycare and who waited long hours to have their important matters addressed might just be a Shenkman or Hall? Violence can and does take place in corridors and doorways in the courthouses.

While many judges ignore the safety risk in order to carry out their duties, many more are leaving the bench due to job-related stress and poor working conditions.

Chief Justice Carey reported that "the Probate and Family Court expects to lose 20 percent of its bench by Dec. 31, 2011. Only two of these judges were at the mandatory retirement age of 70."

Judges in the Probate and Family Court are required by statute or decisional law to make findings in at least 73 types of cases. Child custody cases, unavoidably wrought with emotion, put vulnerable children in the crosshairs when budget shortfalls result in long delays as decisions wait to be typed. As Chief Justice Carey noted, "mistakes are can be multigenerational."

The Massachusetts Constitution allocates duties and responsibilities to the judiciary that cannot be neutered by the legislative and executive branches. When the courts "hit the wall" and cannot do their jobs, the failure to properly fund the judiciary violates the constitutional authority and prerogative of the judiciary. The constitutional crisis is at hand.

©2014 Massachusetts Bar Association