Family law attorney Kimberley Keyes reviews Massachusetts Probate and Family Court news in her latest judicial roundup blog.

A lot has happened in the world of Massachusetts Probate and Family Court judicial appointments since our last blog in October 2017. The pace of judicial nominations has slowed somewhat, as only two new judges have taken the bench since October. However, the appointment of Hon. John D. Casey as Chief Justice of the Probate and Family Court, as well as the upcoming retirement of Hon. Robert A. Scandurra in Barnstable County, have left court-watchers wondering which judges will fill several flagship posts across the Commonwealth. Meanwhile, the removal of Hon. Thomas H. Estes from the district court bench presents a rare example of a Massachusetts judge facing discipline for judicial misconduct.

As always, we preface the blog by noting that what is presented below is a mix of public information and educated guesswork. The Trial Court keeps a tight lid on judicial assignments, and judges often rotate from court to court with little or no public explanation. We do our best to keep up, but be warned: the only official source for which judge is hearing a particular case is your local Probate and Family Court.

Nomination of Hon. John D. Casey to Chief Justice Leaves (Another) Opening in Norfolk County

As detailed in Attorney Owens’ blog last month, the appointment of Hon. John D. Casey to the Chief Justice position for the state Probate and Family Court was a great choice by the Trial Court, but one that will leave a void in Norfolk County, where Casey served as first justice:

Since taking the bench in Norfolk, Casey has been widely and greatly admired among family law practitioners for his outstanding court room demeanor, professionalism and fairness. Casey is a fantastic choice for Chief Justice, but he will be sorely missed in Norfolk County, where he offered an anchor of stability and reliable jurisprudence amid a judicial lineup that has been marked by constant change in recent years due to judges retiring and being transferred, as documented by Attorney Keyes in her blogs on judicial news.

A month after Casey’s appointment, which will start in July, it remains unclear who will (a.) serve as the First Justice in Norfolk County and (b.) who will be brought into the Norfolk judicial rotation to take over Casey’s caseload. The Norfolk Probate Court has experienced a great deal of turnover in recent years, following the transfer of former First Justice Hon. Jennifer M. Ulwick to Essex County in February of 2016, a series of judges have rotated in and out of the Court, including circuit court judges Hon. Elaine M. Moriarty (ret.) and Virginia M. Ward (who is presently sitting in Norfolk), as well as more recently appointed judges such as Hon. Paul J. Cronin (who is sitting in Boston) and Hon. Lee M. Pederson (who is presently sitting in Norfolk). Longtime Plymouth and Norfolk County judge Hon. James V. Menno also retired last year. In all, the Norfolk Court has seen nearly its entire judicial lineup in the last two years.

Meanwhile, Hon. George F. Phelan has continued to rotate between Plymouth and Norfolk County, while Hon. Susan L. Jacobs, who was originally appointed to serve in Norfolk County, has now spent several years on the bench in Bristol County. Judge Ryley of the Barnstable Probate Court has even been spotted hearing motions in Norfolk County over the last year.

Amidst all of the judicial turnover in recent years, Judge Casey remained the one constant in Norfolk County. With his departure, the Court will be faced with finding permanent replacements for Judge Ulwick, Judge Menno and Judge Casey – all of whom will have departed the Court in the last two years without any clear permanent replacement.

We hear that leading candidates for Judge Casey’s First Justice position could include Hon. Patricia A. Gorman and Hon. Virginia M. Ward. We also hear that Hon. Paul J. Cronin may return to Norfolk County and that Hon. Lee M. Pederson may also be staying. It is unlikely that all of the permanent seats in Norfolk County will be filled any time soon, but the Trial Court has little choice but to appoint a First Justice before Judge Casey departs in July. Over the next year, court watchers should expect a mix of permanent appointments, temporary circuit court judges and short stints by newly appointed judges in Norfolk County.

Pending Retirement of Hon. Robert A. Scandurra Leaves Key Opening at Barnstable Probate Court

Another major figure in Massachusetts Probate and Family Court circles will be on the move in July, as retirement approaches for Hon. Robert A. Scandurra of the Barnstable Probate and Family Court. Judge Scandurra has been an institution in Barnstable County for decades, filling the unique two-judge Court that covers all of Cape Cod with Hon. Robert Terry (ret.) and current justice Hon. Arthur C. Ryley since 2008.

As Judge Scandurra receives well-earned accolades and tributes over the next two months, court-watchers are left to wonder who will fill his seat on Cape Cod? Judge Ryley seems like an obvious choice to fill Scandurra’s first justice role (the Trial’s Court justices and judicial officers page already lists Ryley as a first justice), but who will fill the open seat on the bench following Scandurra’s departure is far less clear.

Last year, Hon. Susan Sard Tierney was named to the bench by Governor Charlie Baker. Prior to her appointment, Tierney worked as an attorney on Cape Cod for more than twenty years. Knowing that Judge Scandurra would likely retire in 2018, I offered some speculation about Tierney’s appointment:

Tierney has recently been sighted on the bench at Plymouth Probate and Family Court, and there has been speculation that she will eventually fill a seat on the Barnstable Probate and Family Court after current First Justice, Hon. Robert A. Scandurra, retires in July of 2018.

A leading candidate for Scandurra’s spot on the bench may be Hon. Angela M. Ordoñez, who was appointed as Chief Justice of the state’s Probate and Family Courts in 2013, a seat that – as noted above – will soon be filled by Hon. John D. Casey. Notably, Scandurra retires on July 13, 2018 while Judge Ordoñez’s term as Chief ends on July 16, 2018. To date, Ordoñez has not offered any hints about whether she’ll be returning to the bench, but rumors have swirled about her filling the vacancies left by either Judge Casey in Norfolk or Judge Scandurra on the Cape. Many have connected Ordonez, a strong advocate for LGBT rights, to the Barnstable County opening, in part due to the thriving LGBT community on the outer Cape.

Another possibility for the Barnstable spot is Hon. Denise L. Meagher, who has recently heard cases in Barnstable Probate Court. Meagher was previously First Justice of the Worcester Probate and Family Court, but is currently listed by the state as an Associate Justice. More importantly, Judge Meagher has regularly been hearing cases in Barnstable since the winter and is scheduled to stay there through at least the end of July. Meagher’s appearance in the regular judicial rotation with Judges Scandurra and Ryley in 2018 has led some to speculate that the Trial Court is considering adding a third judge on a permanent basis in Barnstable County, which includes all of Cape Cod.

Hon. Janine D. Rivers Appointed to Suffolk Probate and Family Court

On December 20, 2017, the Governor’s Council approved the nomination of Hon. Janine D. Rivers as a judge on the Suffolk Probate & Family Court. According to the governor’s press release:

Rivers has over 20 years of legal experience, concentrating in Probate, Family and Juvenile law and four years of social work experience with the Department of Children and Families in Dorchester. …. Janine D. Rivers has been a sole practitioner since 1997 where she manages, prepares and represents clients in Juvenile and Child Welfare, Family Law, Divorce, Child Support and Custody, Guardianship and Contempt matters, and Debt Collection.

Although Rivers was appointed to the bench in Suffolk County, it is likely that she will spend time reviewing cases in other counties before taking her final post in Boston.

Hon. Paul M. Sushchyk of Worcester Appointed to Suffolk Probate and Family Court

On January 31, 2018, the Governor’s Council approved the nomination of Hon. Paul M. Sushchyk to the Probate and Family Court. According to the governor’s press release:

Sushchyk has over three decades of legal experience and served for 27 years in the United States Army Reserve, retiring in 2003 as a US Army Judge Advocate Major. …. Paul M. Sushchyk is currently engaged in the private practice of law in Worcester. He was previously associated with the firms of Army and Army LLC and Berg and Laipson. … Sushchyk began his career as a police officer with the Sterling Police Department and worked as a Trooper in the New Hampshire State Police. He also served as a Sterling Selectman from 2000 to 2013. He is a member of the Worcester County Bar Association, serving on the Executive Committee and is a past President.

It is not clear where Sushchyk will take the bench, but his private practice centered in Worcester County. As of June 2018, Sushchyk is hearing cases in Worcester County.

Hon. Paula M. Carey, Re-Appointed as Chief of the Trial Court, Leads Fight for Funding

In other news, Hon. Paula M. Carey has been reappointed as Chief Justice of the Massachusetts Trial Court. Carey, a former First Justice of the Norfolk Probate and Family Court and Chief Justice of the Probate and Family Court statewide, is viewed as a strong advocate for Probate and Family Court funding within the state bureaucracy.

Perhaps due in part to Carey’s advocacy, the state’s Probate and Family Courts received a funding boost under Governor Baker’s recently proposed budget. Under the proposed budget, the Probate and Family Court would receive a funding allocation of $848,000 above current spending levels.

Special Fiduciary Litigation Session Expanded from Norfolk to Plymouth and Essex Counties

The trial court has approved the expansion of a popular program led by retired judge, Hon. Elaine M. Moriarty (ret.), which focuses on assigning specific judges to hear complex fiduciary and probate litigation. It is no secret that Massachusetts Probate and Family Court judges are buried in thousands of “domestic” cases involving child custody, child support, divorce, domestic violence and guardianships sparked by the opiate crisis. This busy workload makes it difficult for judges to dedicate the time and resources needed for complex fiduciary litigation, which often features numerous parties, multiple attorneys and relatively arcane legal theories.

The expansion of Moriarty’s program north and south from Norfolk County will surely help the caseloads in busy Plymouth and Essex Counties.

Prominent Former Judge Reflects on Judicial Crisis in Probate and Family Courts

On November 22, 2017, former probate and family court judge Hon. Edward M. Ginsburg (ret.) wrote an op-ed for Massachusetts Lawyers Weekly (sub. req.) discussing a recent wave of early retirements from the state’s Probate and Family Courts. Ginsburg cited increasing income disparities, the reliance of parties on the court for social services, and a huge increase in the number of self-represented parties who lack attorneys as stress factors judges now face. Ginsburg’s solution is to rotate probate and family court judges through the district court to provide some relief from burnout.

Estes Stripped of Judicial Post in Rare Judicial Disciplinary Action

Finally, it is worth noting that on May 24, 2018, the Massachusetts Supreme Judicial Court handed down an indefinite suspension to Belchertown District Court, Hon. Thomas H. Estes, who was accused of having an inappropriate relationship with Tammy Cagle, the former specialty clinician for the court. Soon after the SJC decision, Estes announced his resignation from the bench.

Estes’ termination was the result of an extraordinarily rare public disciplinary referral by the Massachusetts Commission on Judicial Conduct. According to media reports, more than 90% of complaints made to the Commission are dismissed. The Estes referral was the first issuance of formal charges since 2007 by the Commission, which has “informally” resolved 33 complaints, including private reprimands and voluntary retirements without public disclosure.

The inactivity of the Massachusetts Commission stands in marked contrast to some state commissions, such as the Georgia Judicial Qualifications Commission, which forced the resignations of dozens of state judges for misconduct before being de-fanged by the state legislature. But secrecy and limited enforcement are the approaches used in most states.

About the Author: Kimberley Keyes is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Kimberley Keyes today at (781) 253-2049 or send her an email.

Photo credit: Fletcher6, Registry of Deeds and Probate Court, Color enhanced by L&O, CC BY-SA 3.0