With probate court plan, Mass. lawmakers back the largest one-time expansion of a state bench in decades

Massachusetts State House in Boston on March 15, 2023.Craig F. Walker/Globe Staff

Massachusetts lawmakers appear poised to pass the largest one-time expansion of a state judicial bench since at least 2000, embracing plans to fortify a Probate and Family Court system that officials say is swamped with increasingly complex cases.

The Massachusetts House and Senate both tucked language into their state budget proposals that would add eight judges, pushing the number of probate and family justices to 59 and the statewide judicial bench to 425.

Its inclusion in both chambers’ budget plans likely ensures it will reach the desk of Governor Maura Healey, a first-term Democrat. Should the expansion become law, Healey would have the power to pick the nominees for any newly created posts.

Judiciary leaders have pressed for the $1.6 million plan, arguing that probate and family judges — who handle divorces, custody disputes, estate and guardianship cases, and adoptions — shoulder some of the largest, and thorniest, workloads in the court system. Judges can then take months to issue decisions, leaving families, children, and others in the lurch with what court officials acknowledge are “intolerable delays.”

“The Probate and Family Court docket mirrors society’s ills,” said state Senator John C. Velis, a Westfield Democrat, noting that mental health and substance use issues, domestic violence, and poverty are often intertwined in these judges’ caseloads. “Folks’ lives can’t go on until a matter is resolved [in these cases]. So when they’re prolonged for months or years, what societal benefit is there?”

Massachusetts has expanded its bench before, most recently in 2017 when it added six justices — five in the Housing Court and one in Juvenile Court — to push its current headcount to 417.

The largest expansion before that goes back to 2000, when the Juvenile Court grew by four justices, from 37 to 41, according to a Trial Court spokeswoman. The Probate and Family Court itself hasn’t grown since 1999, when it added two justices.

That decades-long stagnation has left judges struggling to keep up, court officials say.

Overall case filings in Probate and Family Court have actually dropped by tens of thousands over the last decade, settling at nearly 119,000 filings last fiscal year. But probate and family judges still carry, on average, more than 2,000 filings apiece a year. Only district court judges handled a higher average number of case filings last fiscal year, according to a Globe analysis of court data.

The vast majority of probate and family cases — as much as 90 percent, by some court estimates — also involve at least one litigant who is representing themselves, which only adds to a judge’s workload as he or she must guide these cases without trained attorneys, officials say. And probate and family judges rarely, if ever, have so-called lobby days, which are devoted to drafting decisions away from the bench, according to court officials.

In testimony to the Legislature’s budget committees last month, Jeffrey A. Locke, the Trial Court’s chief justice, said the Probate and Family courts are “drowning.”

“By any measure, the workload . . . is unsustainable and has brought the Court to a crisis point,” Trial Court officials wrote in a March report to the Massachusetts Bar Association.

Lawmakers have heeded the warnings. State Representative Michael Day, the House’s judiciary chair, noted that probate and family judges are regularly required to put their findings in writing, amplifying the demands on their docket.

Those cases also cover “some of the most heart-wrenching” circumstances, such as child custody battles, said state Representative Carole A. Fiola, a Fall River Democrat and the proposal’s House sponsor.

“There are children at stake here,” Fiola said. “The cases are [becoming] more complex, there are more cases coming at them. And they want to be able to have swift justice.”

Should it pass, the proposal would also augment Healey’s ability to begin reshaping the judiciary in her first year. Already, at least 19 judges, two of whom serve in the Probate and Family Court, are facing mandatory retirement this year. (State judges can serve until the age of 70.)

Four months into her tenure, Healey has yet to name a judicial nominee. She last month named a Judicial Nominating Commission, which will screen and recommend applicants to her, and it has begun accepting applications for a variety of openings.

Healey’s nominees can help begin to define her legacy. Charlie Baker, Healey’s Republican predecessor, appointed nearly 60 percent of the state’s judges across his two terms, including the entire Supreme Judicial Court, cementing his imprint on the state for years, if not decades, after his exit from Beacon Hill.

Adding to the Probate and Family Court now is crucial for practical reasons, said Martin W. Healy, chief legal counsel and chief operating officer for the Massachusetts Bar Association.

“The reality is, without additional personnel, the job isn’t getting done as it should be,” he said. But it also is advantageous for Healey, he said. “It certainly does tip the scales in her favor. It would help give her an early opportunity to put her own stamp on the court system.”

Karissa Hand, a Healey spokeswoman, said the governor would have to review any bill that reaches her desk, but she signaled that Healey supports expanding the court.

“The Healey-Driscoll administration is committed to ensuring that the Probate and Family Court has the resources it needs to serve the people who rely on it, including expanding the bench,” Hand said.