michigan’s judiciary success stories...success stories: how probate courts work to protect the...

SU CC E SS S TO R I E S: H OW PR O BAT E CO U R T S WO R K TO PR OT E C T T H E PE O PLE O F M I C H I G AN PAG E 1

SUCCESS STORIES

HOW PROBATE COURTS WORK TO PROTECT THE PEOPLE OF MICHIGAN

MICHIGAN’S JUDICIARY


M E S S A G E F R O M M I C H I G A N S U P R E M E C O U R T

CHIEF JUSTICE STEPHEN J. MARKMANWithin our judicial branch, it is imperative that we have in place an effective system for resolving a variety of deeply-sensitive legal matters, such as the probate of estates, the supervision of trusts, the administra-tion of guardianships and conservatorships, and addressing treatment for persons with mental illness.

Michigan’s probate courts have a lengthy and honored history of pro-viding that very system, in which cases routinely affect the legal inter-ests of some of our state’s most vulnerable individuals and families, including the elderly, children, and persons who are mentally impaired or incapacitated.

There is no doubt that our probate court system has evolved signifi-cantly over the years. From 1789, when Peter Audrain became the first probate judge in the territory of Michigan, to 1997, when the Family Division of the Circuit Court was established, this system has had to respond to the changing needs of the people. Depending on their location, for example, some probate courts now also hear many types of family law cases, in addition to those cases once more traditionally associated with probate courts.

A particularly notable change to the probate system occurred when the Legislature enacted the Estates & Protected Individuals Code (EPIC) in 1998. This law removed the then-existing requirement for probate courts to supervise every estate and trust case. Now, probate courts are only required to supervise estate and trust cases if the parties involved request such involvement. This not only promotes increased privacy and autonomy for the parties in-volved, but also considerably reduces administrative costs for the courts of our state.

This report helps to explain and spotlight the significance of Michigan’s probate court system, from our State Court Administrator (himself a former probate judge) Milt Mack, and his efforts on the decriminalization of mental illness to our featured judges’ innovative (but always legally-grounded) approaches to assisting struggling families in their communities.

Although we have featured only six probate court judges in this report—one from each of Michigan's six State Court Administrative Office regions—we recognize and applaud the impressive work that all 103 Michigan probate judges carry out with dedication each day.

We hope that these success stories will help to provide some insight as to the importance of individual judicial leadership, collaboration with affected parties, and a sense of public service on behalf of communities, families, and children across Michigan.

Finally, this report provides what I believe will be helpful information generally concerning probate courts in Michigan, including a historical overview of how these courts originated and developed and background into the overall workings of our probate system. I also encourage you to read more Michigan judicial success stories at: www.courts.mi.gov/successstories.

Chief Justice Markman


TAB LE O F CO N T E N T S

CHIEF JUDGE DORENE ALLEN.......................................................................................................................4 Chief Judge Allen Is Turning Her Passion for Helping Children into Action Throughout Her Community

CHIEF JUDGE FREDDIE BURTON, JR............................................................................................................6 Wayne County Chief Judge Burton’s Passion & Hometown Commitment Give Hope to Local Families

JUDGE LINDA HALLMARK..............................................................................................................................8 Judge Hallmark: Following Her Calling to Make a Difference for Families in Michigan

CHIEF JUDGE MONTE BURMEISTER...........................................................................................................10 For Chief Judge Burmeister, Serving in the ‘Original People’s Court’ Is Its Own Reward

CHIEF JUDGE CHERYL LOHMEYER.............................................................................................................12 Giving a Voice and a Helping Hand to Those in Need Has Shaped Chief Judge Lohmeyer’s Legal Career

CHIEF JUDGE DAVID MURKOWSKI............................................................................................................14 ‘Beyond the Docket’: How Judge Murkowski Works to Help Build Paths for Individuals to Improve Their Lives

STATE COURT ADMINISTRATOR MILTON MACK, JR...............................................................................16 From Probate Judge to State Court Administrator: How Milt Mack’s Problem-Solving Approach Is Putting a National Spotlight on Mental Illness in the Criminal Justice System

QUESTION & ANSWER WITH RETIRED PROBATE JUDGE KENNETH TACOMA..................................19

MICHIGAN’S PROBATE COURT SYSTEM....................................................................................................20 The Development of Probate Courts in Michigan: What They Are and How They Function

MICHIGAN’S FIRST PROBATE JUDGE.........................................................................................................23 Pierre “Peter” Audrain


CHIEF JUDGE DORENE ALLEN

Chief Judge Allen Is Turning Her Passion for Helping Children into Action Throughout Her Community

Chief Judge Dorene Allen’s dedication to her job has gone to the dogs. Literally.

The Midland County Probate & Juvenile Court Chief Judge—and current President of the Michigan Pro-bate Judges Association (MPJA)—has always been passionate about improving the lives of local children, both in the courtroom and out in the community. Now, she has enlisted “Courthouse Clyde” to help her.

Clyde is Chief Judge Allen’s Golden Retriever puppy who has pretty much been raised in the court for the last year.

“I always wanted a dog in my courtroom,” she ad-mitted. “They are the great equalizer to whomever comes in.”

Clyde is a trained therapy dog who truly brings joy and changes the energy in the courtroom, according to Judge Allen. He even dresses the part of a profes-sional while in court, sporting the occasional necktie.

Enlisting Clyde’s assistance in court is just one way Judge Allen has taken creative action to invest in local kids.

Having spent the early part of her law career in private practice handling child abuse and neglect, probate, and family law cases, she has put her back-ground to good use after being elected to the bench in 2000 (and re-elected in 2006 and 2012).

Since then, Chief Judge Allen has worked to reorga-nize Midland’s juvenile court programs so that youth could be treated and housed in their home county rather than being placed in other counties or other states to receive the treatment they need. She rarely places children in residential facilities—instead cre-ating a day treatment program in Midland County. Not only is this far better for children, explains Judge Allen, but it has saved the court millions of dollars.

Chief Judge Allen’s past work in the mental health field has also served her well in court, as she certainly has put that knowledge to work. She started a Com-munity Mental Health project in Midland that led to the development of two evidence-based programs used in the court: Multisystemic Therapy for juveniles with delinquency; and Baby Court, an intensive infant mental health program for reunification of infants and toddlers with their parents.

Chief Judge Allen and Clyde on the job.


CHIEF JUDGE ALLEN

On top of these programs, Chief Judge Allen has more recently worked to ensure every Midland County youth in need has access to treatment for substance use disorders.

As a result of the success of these and other pro-grams initiated in the juvenile care center, Midland County’s juvenile delinquency rate has decreased by 81 percent since 1998 while, at the same time, there has been a treatment cost savings. Midland County residential treatment costs for juvenile offenders have dramatically declined by 98.9 percent since 2004.

“Being able to play a role in so many lives has been really special,” Chief Judge Allen shared.

Outside of the court, she has enacted several programs for children in Mid-land County schools, including the Michigan School Justice Partnership, which is part of a national anti-truancy effort to keep students in school and out of trouble and the community school model.

“Having someone there in the schools, talking to kids in the halls when they come in late can reveal a lot about what’s really going on,” Chief Judge Allen remarked about the new Pathways to Potential program.

Based on her history of working to better the lives of children in her community, Chief Judge Allen got some well-earned recognition in 2013 when she received the Daniel J. Wright Lifetime Achievement Award from the Michigan Supreme Court.

Wright, who was a former director of the Child Wel-fare Services and the Friend of the Court Bureau divisions of the State Court Administrative Office, helped Chief Judge Allen establish the Midland Coun-ty Probate Court’s Baby Court program.

Through this endeavor, they became close colleagues and friends.

“Being able to get an award that was modeled on Dan’s integrity, work ethic, and caring is a very big deal for me. It’s a way of continuing his legacy,” said Chief Judge Allen.

As the new President of MPJA, Chief Judge Allen has been busy organizing the annual conference in Mid-land.

“I get to show off my town a little,” Chief Judge Allen said proudly.

She calls the group “fabulous” and notes the camara-derie among probate judges, saying that MPJA gives judges great opportunities to chat, learn, and have a little fun.

And speaking of fun, Chief Judge Allen has had to occasionally take a break from her association and community efforts to tend to another important task—teaching new tricks to Courthouse Clyde so he can continue to bring more smiles and comfort to her courtroom.

Chief Judge Allen (front, center) celebrating Adoption Day 2017 alongside MSC Justices Elizabeth Clement and Kurtis Wilder, not to mention families and

superheroes.


CHIEF JUDGE FREDDIE BURTON, JR.

Wayne County Judge Burton’s Passion and Hometown Commitment Give Hope to Local Families

“I can’t think of a case where I thought it was hopeless.”

So says Wayne County Probate Court Chief Judge Freddie Burton, Jr.

Throughout his time on the bench he has handled thousands of cases and his proudest accomplish-ment to date is ensuring the safety of the people who appear before him.

“I am proud of our work in protecting people, get-ting them into homes—particularly kids and inca-pacitated adults, and seniors,” said Judge Burton. “I derive great pleasure in seeing that they’re safe and that they’re comfortable.”

Chief Judge Burton describes what sets probate court dockets apart from other court dockets.

“It’s not a criminal court; it’s a civil court,” he explained. “It is really focused on family. If a per-son passes away, this court has responsibility for probate administration. With guardianship, con-servatorship, trust, or civil actions, it’s this court’s responsibility each time, and it affects all family members, so we think that the culture of probate court is what makes it unique.”

Chief Judge Burton explained why he thinks pro-bate court is so important to our judicial system.

“The probate culture is designed to protect those in our society who can’t protect themselves,” remarked Chief Judge Burton. “So in a nutshell, anything that we do is related to family. And since there’s been tremendous breakdown in the family

Chief Judge Burton

“The probate culture is designed to protect those in our society who can’t protect

themselves.”


CHIEF JUDGE BURTON

in our country, I think probate court is perfectly situated to facilitate families coming together and giving them the assistance that they need to go forward.”

Currently, Chief Judge Burton and Judge Timothy M. Kenny, the Wayne County Circuit Court Chief Judge Pro Tem and Presiding Judge of the Criminal Division, have been working together on a plan to address how to decriminalize mental illness.

“The national prison population is going down, but the percentage of persons in the prison system who are mentally ill is going up,” he explained.

Despite having great dedication for his job, Chief Judge Burton never initially planned to become a

judge. But after earning his law degree from Wayne State University School of Law, someone eventu-ally suggested that he put his hat in the ring for appointment in 1987, and he’s been on the Wayne County Probate bench ever since.

Adding to the passion he has for helping vulnerable citizens, Judge Burton is also very committed to improving the city of Detroit.

“I’m a native Detroiter. I went to public high school here at Martin Luther King Jr. Senior High School, and I’m committed to the people of Wayne County and Detroit to ensure that we continue to make progress,” said Chief Judge Burton. “I’m very pleased about where we are and where we are heading.”

FACTS ABOUT MICHIGAN PROBATE COURTS:

• The probate court has jurisdiction over admission of wills, administration of estates and trusts, guardianships, conservatorships, and the treatment of mentally ill and developmentally disabled persons.

• Each county has its own probate court, with the exception of 10 northern counties that have consolidated to form five probate court districts. Each of those probate court districts has one judge. Other probate courts have one or more judges, depending on that court’s caseload. There are 78 probate courts in Michigan.

• Probate judges are elected to six-year terms on a nonpartisan ballot; a candidate must be a qualified elector, a resident of the judicial circuit, a lawyer admitted to practice for five years, and under 70 years of age at the time of election. The Legislature sets probate judges’ salaries, currently at $145,557.


JUDGE LINDA HALLMARK

Judge Hallmark: Following Her Calling to Make a Difference for Families in Michigan

Lawyer. Advocate. Jurist. Relay anchor.

All of these describe the important roles Oakland Coun-ty Probate Court Judge Linda Hallmark has taken on during her legal career, but the last one is perhaps the most significant because she ran the last leg of a years-long relay to deliver one of the most sweeping court changes in Michigan court history: the creation of the Family Division of the Circuit Court.

As Chair of the State Bar of Michigan’s Family Law Section in the late 1990s, Judge Hallmark was charged with leading a campaign that had begun decades earlier to create a court that would effectively and consistently deal with matters of family law. And in 1997, she crossed the finish line when the Family Division was created in statute.

Judge Hallmark emphasizes that many others before her had “put in the legwork,” but as Chair of the Family Law Section, she was able to help oversee the passage to deliver the final product. Soon after, she was appointed by the Governor to sit as a Probate and Family Division Judge.

“Family law attorneys have long recognized that the cases we handle are unique and require skills beyond legal expertise,” she explained. “More than in any other type of litigation, emotions may interfere with the application of sound judgment and legal principles. Family law practitioners know that it is necessary to have a bench that has the time and patience to recog-nize and sort out these emotional issues.”

She continued, “To deal effectively with cases that may

go on for years in the post-judgment phase, we had always advocated for a permanent bench. We believed that the need for consistency was essential to the operation of a high-quality court. The pressures on our courts of a burgeoning criminal caseload and ever-more complex civil litigation often have resulted in family law cases receiving less than their fair share of judges' time and attention, despite the good intentions of attorneys and judges.”

Judge Hallmark described the initial struggles, both financial and political, of creating a Family Court system. The legislative process took almost two years to accom-plish, and the resulting law did not fully resemble the Family Court that the Section had long advocated. Numerous compromises occurred along the way. The final product, however, offered the opportunity to struc-ture the family division in each circuit to meet the needs of the local community.

Judge Hallmark


JUDGE HALLMARK

Since then, Judge Hallmark has moved from a Family Division docket to the probate court, and she notes the many similarities and areas of overlap between the two.

“When we are hearing adult guardianship or conserva-torship cases, there might be a pending divorce or other pending litigation going on in the family court,” she remarked. “I always thought it was useful to have both dockets so decisions could be coordinated.”

Even with the strides that have been made in family and probate courts over the years, Judge Hallmark believes there is still a long way to go.

“I’d like to see the Family Divi-sion have a permanent bench so judges would not rotate out of the division,” Judge Hallmark said. “There would be more stability if we had judges who were elected into the Family Division, and that was their calling.”

From seeing children thrive in a new home to the time a teenager she worked with got accepted to Harvard, Judge Hallmark cites “making a difference in people’s lives” as the high point of her career.

“There are very rewarding experiences. You don’t always think about the aftermath once the case is over, you close the file, and it’s off your desk,” she shared. “But of course, life goes on, and it’s nice to know that we do make a positive difference in people’s lives.”

Judge Hallmark currently serves as Chief Judge Pro Tem of the Oakland County Probate Court. The court is cur-rently involved in an administrative restructure.

“A number of administrative responsibilities require more than just the Chief Judge’s hands. We have four

probate judges. Everyone is cooperative and gets along well,” she said. “We have similar goals. It has been a pleasure working with my colleagues to streamline pro-cesses in order to better serve the public.”

Along with her work in the Oakland County Probate Court, Judge Hallmark serves as President of the Michi-gan Inter-Professional Association on Marriage, Divorce and the Family. The organization educates lawyers,

judges, and psychologists on aspects of legal and mental health issues in the law. Judge Hallmark believes it is important that judg-es and lawyers understand the full implications of their decisions.

“Sometimes when we are making decisions about a child—change of domicile, for instance—we have to think ‘How does that affect the child?’” she noted. “Psy-chologists have a better handle on what the child is experiencing. We hear from the adults, but it’s im-portant that we try to understand issues from the child’s perspec-tive.”

Judge Hallmark has received many accolades and honors for her work over the years, including the Oakland County Women Offi-cials Network “Wonder Woman Award,” the Women Lawyers Association of Michigan “Distin-guished Jurist Award,” and the

“Eugene Moore Champion of Justice Award” named for the retired Oakland County Probate Judge, to name just a few.

Despite these honors, she attributes her overall success to the people she has met and worked with along the way. “I have wonderful colleagues and staff members,” she shared, “and it is refreshing to see government working and striving to do its best.”

Judge Hallmark (l) and former Oakland County Circuit Court Chief Judge Nanci Grant each received a special

proclamation from the Oakland County Board of Commissioners in January 2018 in recognition of their

years of judicial service. (Photo: Legal News)


CHIEF JUDGE MONTE BURMEISTER

For Judge Burmeister, Serving in the ‘Original People’s Court’ Is Its Own Reward

“You saved me.”

A young lady approached Crawford County Probate Court Chief Judge Monte Burmeister in public once and said that to him. When he responded initially with a perplexed look, she reminded him of her name and then he remembered: he had handled her abuse and neglect case in court.

She continued, “You took me out of that house. Thank you.” For someone who didn’t remotely plan to become a judge originally, this kind of occurrence is what keeps Chief Judge Burmeister passionate about and dedicated to his role on the bench.

Chief Judge Burmeister credits former Michigan Supreme Court Justice and Court of Appeals Judge Alton T. Davis with his decision to run for election in 2006 in the first place.

“I would not be a judge were it not for Justice Davis’s encouragement,” he remarked. “It was the furthest thing on my mind, not even on my radar.”

Chief Judge Burmeister had a thriving litigation solo law practice at the time and Justice Davis was then a judge in the 46th Circuit Court.

“He asked me if I had ever thought about being a judge. I was surprised by the question and said that I hadn’t,” Chief Judge Burmeister shared. “He then told me I should.”

Years after that election, Chief Judge Burmeister not only oversees the probate court, but he also serves as Chief Judge of the 87C District Court and Presid-ing Judge of the 46th Circuit Court Family Division.

Chief Judge Burmeister’s main probate court focus is guardianships. “The most rewarding aspect of probate court, in particular, is that it’s the original ‘People’s Court,’” remarked Chief Judge Burmeis-ter. “You have an opportunity often to protect the vulnerable and to help families.”

On the flip side, he admits that the most difficult as-pect of working in probate court is trying to fashion a remedy for someone in need, when the agency involved with that individual has a set of protocols, policies, or procedures that are “not conducive to

Chief Judge Burmeister


CHIEF JUDGE BURMEISTER

the mission at hand.”

Chief Judge Burmeister recalls one case in particu-lar that stands out during his tenure on the bench: “Like many probate judges, I handle abuse and neglect cases. I had a case where there were five children being chronically, physically abused by their parents. When child protective services began investigating, the mother told each child she would kill them if they told CPS the truth about what was hap-pening.

“Whether the threat was real or not, the children perceived it as real; they lived in con-stant fear. I removed the children from the home and stopped contact between the parents and children entirely until I could have a psychologist assess the children’s mental well-being.”

He continued, “The psychologist ultimately said the level of abuse they had encountered was so severe that contact with the parents in any form would be further traumatizing to them. Eventually, the par-ents voluntarily relinquished their parental rights.”

And that young woman who thanked Chief Judge Burmeister years later for saving her? She was one of the children he removed from that house.

In addition to his judicial duties, Chief Judge Bur-meister is also dedicated to addressing judicial

ethics and standards of conduct in the profession.

And key words from Justice Davis have continued to guide him in this capacity over the years.

“One of things he said, which I try to remember all the time, is, ‘There is a tendency when you become

a judge to walk into the room and be the 800-pound gorilla. Don’t do it. Try to work with people instead of throwing your weight around. Use of the au-thority the public has invested in you should be exercised wisely and with discretion,’” shared Chief Judge Burmeister.

He was elected as a Commissioner to serve on the Judicial Tenure Commission—current-ly starting his sixth year—and serves as its Vice Chairperson.

He also has presented as a faculty member on the subject of judicial ethics for the Michigan Judicial In-stitute under the State Court Administrative Office.

“My general philosophy is that the commission should serve—not just in an investigative, prose-cutorial, and adjudicatory role—but before we get to those roles, we should also serve an educational role for judges,” he explained. “I am a big propo-nent of giving judges educational tools and high-lighting areas of concern to help them avoid those scenarios that could potentially be a pitfall.”

Chief Judge Burmeister on Adoption Day 2017 at the Michigan Hall of Justice in Lansing, where he introduced 2017 Daniel Wright Award

recipient retired Wexford County Probate Judge Kenneth Tacoma. (See feature on p. 19.)


CHIEF JUDGE CHERYL LOHMEYER

Giving a Voice and a Helping Hand to Those in Need Has Shaped Judge Lohmeyer’s Legal Career

“Victories come in all different varieties in probate and family court.”

As the Chief Judge of Monroe County Probate Court, Judge Cheryl Lohmeyer has learned to appreciate each victory, big and small.

She admits that the most rewarding part of working in probate court is also the most difficult: handling juvenile guardianship cases and child protective pro-ceedings.

“It is rewarding to craft plans for the parents to ad-dress their issues, and it is especially rewarding when the plans are followed and parents find housing, employment, or the treatment and counseling they need,” she shared. “But when parents fail in their plans, fail to visit their children consistently, or even abandon their children, it is heartbreaking. Children deserve stability, permanent homes, support, and love.”

From her time in the county prosecutor’s office to private practice to presiding over probate court cases, Chief Judge Lohmeyer has dedicated her career to probate and family court cases. As an assistant prose-cuting attorney, she advocated for the rights of vic-tims and prosecuted petitions for child abuse, neglect, and juvenile delinquency. She also led a multidisci-plinary team of social workers, law enforcement, and counselors at the Monroe County Child Advocacy Cen-ter in the process of forensic interviewing of children and the investigation of child abuse.

Noted Chief Judge Lohmeyer, “These matters deal with the everyday difficulties of families and require careful problem solving. For example, some probate matters involve securing treatment for the mentally ill who are at a risk of harm to themselves or oth-ers. Thus, after ordering treatment, I get to see their well-being restored.”

And other probate matters require even more careful problem solving. She recalls a case about "Sue," who used heroin, abused prescription drugs, was unem-ployed, and led a generally unhealthy lifestyle. She had at least two criminal charges pending against her, and had been forbidden unsupervised contact with any of her three children, including her third -- a new-born. According to Chief Judge Lohmeyer, the circum-stances of the case “did not suggest that change and rehabilitation would be easy.”

Chief Judge Lohmeyer


CHIEF JUDGE LOHMEYER

But after 11 months, change is just what Sue did. She made it through rehab, implemented a healthier life-style, and found steady employment. As Sue changed, the court’s trust in her grew, until she earned unsu-pervised visits that grew to overnight visits.

“It took an enormous amount of work on her part, but Sue completed her requirements and turned her life around,” shared Chief Judge Lohmeyer. “Sue told me that her probation officer wanted her to talk to other women about overcoming addiction. I remarked that she is a role model now. She started to cry; I don't think she even realized it.”

While Sue’s turnaround is a victory, her story is by no means an unusual circum-stance in probate court. As the opioid epidemic con-tinues to ravage the entire state—and country—Chief Judge Lohmeyer notes a particular consequence that many do not fully real-ize: the foster care system is being overwhelmed with children of those who have been engulfed by this epidemic.

“I believe that collaboration between the court and other stakeholders is critical to addressing this issue and the safety and long-term well-being of kids,” she remarked.

To that end, she created Monroe’s Child Welfare and Stability Work Group, a multi-disciplinary coalition of jurists, attorneys, Department of Health and Hu-man Services (DHHS) staff and leadership, Friend of the Court, and Probate Register. With a mission of achieving stability for children, these stakeholders are

collectively developing local best practices for youth in out-of-home placement and addressing the proper application of Estates & Protected Individuals Code limited and full guardianships, third-party custody actions, juvenile guardianships, adoptions, and child protective proceedings.

“Being witness to juveniles righting their wrongs through restorative justice programs, parents who

overcome addictions, and children blooming in the care of loving foster par-ents is a privilege,” she continued. “Helping to problem-solve and being a part of these human stories remind me there is no court where I would rather be.”

In addition to her judicial duties and communi-ty-based collaborations, Chief Judge Lohmeyer also serves on the Governor’s Task Force on Child Abuse and Neglect, and was appointed to chair the Law and Policy Committee. The Committee is charged with making recommendations

to the Task Force regarding the reform of laws and DHHS policies with the goal of helping to protect chil-dren from physical and sexual abuse and exploitation.

“During my time on the Task Force, I hope to see our efforts to increase the number of foster homes be successful. Every child who has been subjected to abuse or neglect deserves a safe and loving home,” remarked Chief Judge Lohmeyer. “I also would like to ensure that training on the signs of child abuse and neglect becomes more widely available. Children need as many watchful eyes and helping hands as possible.”

On Adoption Day 2017, Chief Judge Lohmeyer gives a newly-adopted child the moment of a lifetime:

banging the gavel in court!


CHIEF JUDGE DAVID MURKOWSKI

‘Beyond the Docket’: How Judge Murkowski Works on the Bench and in the Community to Help Build Paths for Individuals to Improve Their Lives

Kent County Probate Court Chief Judge David Murkowski is proud to have a direct and meaningful hand in the administration of justice.

For Chief Judge Murkowski, probate court has many rewarding aspects.

“We see individuals every day who are incapacitated, vulnerable, exploited, and mentally ill, or simply need some help,” he said. “To be able to provide a path to self-reliance, or safety, or stability is most rewarding to me.

However, Chief Judge Murkowski described that there are difficult aspects that come along with probate court work.

“Frustration comes from the failure to successfully reach these persons who are in need,” he said. “Spe-cifically, great frustration comes with witnessing those who suffer with a mental illness and cycle through repeated hospitalizations.”

Chief Judge Murkowski shared a probate success story that has stuck with him throughout his time on the bench.

“A 60-year-old with a mental illness and a substantial substance abuse history is involved in a motor vehicle accident,” shared Chief Judge Murkowski. “He suffers bodily injuries, cardiac arrest, and a subdural hema-toma. He demonstrates severe deficits in orientation, memory, attention, and executive functioning. Be

cause of this gentleman’s substance abuse history, the family is estranged and unwilling to serve as guardian, so a professional guardian is appointed.”

He continued, “Two years later, the guardian peti-tioned the court to dismiss the guardianship. The guardian has made surgical decisions, and post-oper-ative decisions, orchestrated rehabilitation services including occupational and physical therapy, and secured alcohol and substance abuse treatment. The individual heals physically, engages in substance abuse treatment and Alcoholics Anonymous, and embraces sobriety. Independent housing is secured, sobriety continues, and his family rejoins his life. At the hearing to terminate the guardianship, the gen-tleman states: ‘I couldn’t have done this without my guardian.’ The guardianship is then terminated. That is a probate success story.”

Chief Judge Murkowski was appointed by the Gover-nor to the probate court and the Michigan Supreme Court appointed him Chief Judge in 2008.

Chief Judge Murkowski


CHIEF JUDGE MURKOWSKI

“My immediate goal on the first day I took the bench was not to embarrass myself,” joked Chief Judge Murkowski. “I was comfortable with the mechanics of courtroom procedure and litigation, but nothing can replace preparation. Before I took the bench, I read the Estate & Protected Individuals Code (EPIC) from cover to cover. You read and re-read every pleading, brief, and case citation. With varying degrees of suc-cess, my goal is to know the case before me as well as the attorney standing in front of me.”

Chief Judge Murkowski said that another short-term goal he had was to forge relationships with his court staff and have a real understanding of the internal workings of the court.

“To engage the staff, I asked every employee for three sug-gestions on how to improve our court’s performance. The re-sponse was positive and over-whelming.”

His time on the bench has made numerous positive changes to the probate court system.

“I am most proud of any case that I can amicably and successfully settle without the need for contested litigation,” he shared. “As a member of the Probate and Estate Planning Council, I initiated an effort to restructure the probate appellate process. Historically, the appellate process was splintered, inefficient, and uneconomical. Through a tremendous collaborative legislative effort of all stakeholders that spanned the course of several years, the appellate process has been restructured and streamlined to direct all pro-bate appeals to the Court of Appeals.”

He has also been very active in the Michigan Probate

Judges Association (MPJA), serving as President in 2017. Chief Judge Murkowski has served on the MPJA board of directors and the executive committee for 10 years. He describes the association’s purpose as being the promotion of justice, professional excellence and respect for the law, fostering the dignity and integrity of the judiciary, and serving the needs of members and the legal community. Virtually every probate judge in the state of Michigan is a member of the

organization, he says.

“We have a great focus on peer education and we work diligently to educate and share ideas, best practices, and questions among our members,” he said.

Chief Judge Murkowski’s efforts have set forth a lasting impact on the Michigan Probate Judg-es Association. For example, he and his Probate Register were among 15 teams selected by the Supreme Court to participate in a six-month Court Leadership Train-ing Academy certification pro-gram, which recently concluded.

In addition to Chief Judge Mur-kowski’s longtime work in MPJA,

he was also appointed to serve on the subcommittee of the Governor’s Mental Health Task Force to devel-op new mental health legislation, and he lectures rou-tinely for both the State Bar of Michigan and Supreme Court’s Michigan Judicial Institute.

“The responsibilities of a judge extend beyond the docket,” remarked Chief Judge Murkowski. “I believe there is an obligation to serve your colleagues and the larger community—all of that takes time.”

“We see individuals every day who are

incapacitated, vulnerable, exploited, and mentally ill, or simply need some

help. To be able to provide a path to

self-reliance, or safety, or stability is most rewarding to me.”


STATE COURT ADMINISTRATOR MILTON MACK, JR.

From Probate Judge to State Court Administrator: How Milt Mack’s Problem-Solving Approach Is Putting a National Spotlight on Mental Illness in the Criminal Justice System

To Milton Mack, Jr., probate court is not just a place to settle estates—it’s truly another kind of problem-solv-ing court.

“Probate court created the opportunity to be a prob-lem solver on a daily basis, which is what I enjoy doing,” explained the former chief judge of the Wayne County Probate Court.

Ever since he transitioned from being a probate judge to being State Court Administrator in 2015, Mack has been passionate about bringing one particular aspect of probate work to the forefront of a larger dialogue: addressing mental illness in the criminal justice sys-tem.

“There’s no excuse for 24 percent of our prison inmates having a serious mental illness,” exclaimed Mack. “There’s no excuse for having more people with mental illness in prison than in hospitals.”

Mack, who currently serves on the state’s Mental Health Diversion Council, says that his passion for mental health reform stemmed from his frustration as a probate judge for more than 25 years with people coming in and not getting any better under the sys-tem.

“I could also see that more and more of the work we did in handling people with mental illness was going over to the criminal justice side. It struck me that, ‘We have a civil justice side already, so why isn’t that work-ing?’” remarked Mack.

“I watched as more people were getting into the criminal justice system and ending up in prison, so I’ve been an advocate of change for a long time, which is what ultimately led to my appointment to the Mental Health Commission in 2004,” he continued. “That was a great experience in the sense that we were able to put our arms around the issue and develop a proposal that outlined a new mission, vision, and goals for the states mental health system.

“The issues I raised about the mental health system led to the change in ‘Kevin’s Law,’ to make it work better,” said Mack. “Actually, to make it work, period, because it didn’t work at all before.”

“Kevin’s Law” took effect in 2005 and was named after Kevin Heisinger who was beaten to death by a schizophrenic patient not taking his medication. Mack said that the intention behind Kevin’s Law was for the

Mack in his office at the Michigan Hall of Justice.


MILT MACK

court to intervene early in someone’s mental illness before they got in trouble and to hopefully get them outpatient treatment so they would not have to be hospitalized.

“It is a great idea, but the problem was that as writ-ten, you weren’t allowed to intervene early, number one, and number two, there wasn’t a system to pro-vide the service, so it wasn’t working at all,” explained Mack.

Building on his work in the probate court sys-tem, he wrote a 2017 policy paper titled, “The Criminalization of Mental Illness: Fixing a Broken System.” Mack took the lead in drafting the paper as part of a committee of the Council of State Court Administrators (COSCA), which is an organization run under the auspices of the National Center for State Courts (NCSC).

The paper went through a series of committee meetings and was reviewed by NCSC, as well as state court administrators around the country. His paper received national recognition at the COSCA Conference in the fall of 2017, as well as news coverage across Michigan.

“I’m very pleased with the way it turned out and it was approved by the conference of State Court Administrators this past December and it was recent-ly approved by the Conference of Chief Justices—all unanimously,” said Mack. “This will be a blueprint for going forward around the country on how to start fixing the mental health system.”

One point he makes in the paper is that the mental health system must intervene early in the course of

someone’s mental illness to keep their behavior under control, so they do not end up in prison.

“Even today, despite the fact that Michigan is doing a great job in expanding mental health courts, the number of people with serious mental illness going to prison is still increasing and we have to stop that,” said Mack. “I won’t be satisfied until we reverse that trend. We have not done it yet. The reforms we are proposing are designed to help reverse that trend.”

For instance, Mack be-lieves we should have a strong outpatient treatment system that is community based and provides care for people in a timely fashion.

“We know that men-tal illness is treatable, recovery is possible, and many people with mental illness can live productive lives,” said Mack. “But the import-ant feature is timely

treatment for mental illness. If you treated cancer like we treat mental illness then we wouldn’t build more treatment facilities, we’d build more hospice facili-ties.”

“It’s just incredible to me that we have chosen to delay treatment for mental illness knowing the harm it causes,” said Mack. “We wouldn’t do this for any other illness.”

Mack praised the work of the Mental Health Diversion Council in addressing these issues, and in particular, the contributions of Kalamazoo County Probate Court Chief Judge Curtis J. Bell, Jr, who also serves on the Diversion Council.

Mack presenting his policy paper to the Arizona judiciary in 2017.


“Judge Bell has been an outstanding leader on this issue,” said Mack. “He has run most of the ad hoc committees we’ve set up that do the real work of the commission. He’s able to bring people together; I really appreciated his leadership style. Some of us can become a little aggressive in the positions we take, but Judge Bell always remains cool, calm, and collect-ed, and helps guide us to a decision.”

Most recently, Judge Bell testified before the House Judiciary Committee in Lansing in support of legisla-tion that would establish a specific juvenile mental health court.

Today, Mack is optimistic that through his policy paper “blueprint” and the work of the Diversion Council, the Michigan Mental Health Code will be reformed, which he says has been the main obstacles to getting treat-ment.

“That won’t solve the entire problem because one of the big problems is the lack of resources,” he explained. “But the first thing we want to do is get rid of the obstacle. Once that happens, it will lay the groundwork toward making further long-term chang-es that are needed.”

MILT MACK

Mack (standing, center) at the bill signing for legislation amending “Kevin’s Law” in 2017.

Find Milt Mack’s policy paper online at www.courts.mi.gov/mackpaper.


Question and Answer with Retired Judge Kenneth Tacoma, of Wexford County Probate Court

JUDGE KENNETH TACOMA

Michigan Supreme Court: What goals did you have for the court when you took the bench? Judge Tacoma: My primary goal was to ensure fair treatment and making sure that the office of judge remains impartial.

MSC: What makes the probate court docket unique from other court dockets?

JT: It’s the kinds of cases that come in and the ones that deal with life and death and interpersonal rela-tions between people. Family disputes are always very difficult and heartbreaking, and these people need to know that they have an ear that’s empathetic and impartial to hear what everybody has to say and then make a fair and impartial decision.

MSC: Looking back after nearly 40 years in family/pro-bate court, what are you most proud of?

JT: I wrote a couple of articles that came to the atten-tion of then-Chief Justice Maura Corrigan, and they dealt with the problem of children getting caught in the foster care system and never being adopted—basically aging out without any permanency or any plans. So we worked together on the passage of leg-islation to make changes to the system, and I’m quite proud of that, although there’s still a long way to go.

MSC: What did it mean to you to win the 2017 Daniel Wright Lifetime Achievement Award?

JT: I was extremely humbled. To get that award for that kind of work is all that I could hope for to com-

plete a career, so I was very thankful to the people who nominated me. Establishing a completely honor-able administration is what I am most proud of.

MSC: What was your favorite part of the job?

JT: When I felt I had done a thorough job of research-ing the law and heard the case thoroughly and then made a decision that was fair.

MSC: What you think makes probate court so essen-tial to our judicial system?

JT: In pure probate work, which involves trust and administration of estates and guardianship, you’re al-ways dealing with people who are most vulnerable—people who don’t have any real protection because they’re either weak and infirm, or very young. That’s why the probate court is such an important court. It deals with people; it’s not dollars and cents in our court, so much, it’s more life and death and the inter-personal relationships that are so important.

Judge Tacoma with mentor, colleague, and friend, former Chief Justice Maura Corrigan.


MICHIGAN’S PROBATE COURT SYSTEM

The Development of Probate Courts in Michigan: What They Are and How They Function

Benjamin Franklin once said that there are only two certainties in life: death and taxes.

These two issues certainly lie at the heart of much of what Michigan probate courts handle ev-ery day, whether it’s an estate, a conservatorship or guardianship, or another matter.

So how and when did these courts come about?

According to the Marquette Law Review, probate courts derive historically from the ecclesiastical courts of England. The Michigan Manual (2007-08) described that in 1818, the governor and the Su-preme Court established the court of probate in each county. The Revised Statutes of 1838 made the office of Judge of Probate elective for a term of four years. The Constitution of 1850 allowed for there to be a probate court in each county.

In a newsletter published in 2000 by former Calhoun County Probate Judge Phillip Harter, he described that in Michigan, there is a probate court in each county, with the exception of 10 counties that have merged to form five pro-bate court districts. Each district has one judge, and remaining counties

contain one or more judges depending on howlarge the population is and caseload within the county. Judge Harter also noted that in probate courts, judges are elected for terms of six years in nonpartisan elections. In order to be a candidate, one must be a qualified elector, resident of the probate district or county, have been a lawyer licensed to practice law for at least five years and under 70 years of age.

When the 1963 State Constitu-tion passed, it then provided that a person must be a lawyer in order to become a judge. However, at that time, several Michigan probate judges were not lawyers, and those judges were authorized to remain in office until retirement.

Probate court today has three main focus areas: the probate of estates; supervisions of trust, guardianships, and conservator-ships; and the commitment of the mentally ill.

Former Chief Judge of Wayne County Probate Court Milton L. Mack, Jr., who now serves as Michigan’s State Court Administrator, described how probate court differs from circuit and district courts.

Former Probate Judge Philip Harter


PROBATE COURT SYSTEM

“The primary difference is that it’s not a plaintiff versus a defen-dant,” explained Mack. “It’s typi-cally a family with a problem, so it’s not a traditional adversarial set-ting, like most other courts.”

As described by Judge Harter, the probate of estates and supervision of trusts play a big role in the probate court system. The court’s respon-sibility is to handle an estate when someone dies and to determine whether or not that person’s residence and property lies within the county in order to probate the decedent’s estate.

The court must then appoint a personal repre-sentative for the estate and admit the will of the decedent. The person appointed must be respon-sible for gathering assets, paying the bills, and determine for beneficiaries the remains of the estate entitled to it. When probate courts super-vise a trust, it ensures that the terms of the trust are carried out.

In addition, the probate court also handles guard-ianships and conservatorships, and has exclusive jurisdiction over them. The probate court will ei-ther appoint a guardian or conservator of a minor or adult. A guardian is defined as a fiduciary who makes personal decisions for an incapacitated individual. A conservator is defined as a fiduciary who makes the financial decisions for a protected

individual. Also, the court may appoint a guardian or conservator for a developmentally disabled person under the Michigan Mental Health Code.

“Without courts to handle guardianships and con-servatorships, vulnerable adults would be at increased risk of exploitation,” said Mack. “Court-appointed guardians and conservators must report to a judge. Children without parents would also be placed at risk. Children without a legal guardian would be at risk of placement in foster care.” The probate court is responsible for determining whether or not the guardianship or conservator-ship is legally appropriate for the individual, and for determining who should serve in this role.

“Without courts to handle guardianships and conservatorships,

vulnerable adults would be at increased risk

of exploitation.”-State Court Administrator

& Former Probate Judge Milt Mack



One key issue that Judge Harter identifies is that probate court holds responsibility for the com-mitment of the mentally ill. (See the article about Milt Mack’s policy paper on p. 16.)

Once the court determines that a person is men-tally ill, it has the responsibility of also determin-ing whether or not that person could potentially be a danger to anyone and whether or not that individual is able to take care of their physical needs independently. After the probate court reaches a decision that an individual requires

treatment, it is then responsible for establishing the proper length of necessary treatment follow-ing approved requirements.

The role of the probate court changed signifi-cantly in 1997, when the Michigan Legislature created the Family Division in the Circuit Court. This moved delinquency, child abuse and neglect, adoptions, name changes, emancipation of mi-nors, waivers of parental consent, and other

ancillary family matters from the probate court to the circuit court.

“When the family division was created, this divested probate courts of the majority of their jurisdiction. Probate judges were assigned to the family division to continue hearing these cases,” explained Mack. “Probate judges also began hear-ing divorce and custody cases. Concerns were raised about whether it was constitutional to permanently assign probate judges to the circuit court. That issue was resolved by giving probate

courts concurrent jurisdiction to hear family mat-ters.”

Mack says that this had a profound impact on how probate courts operate still today, as many probate judges hear traditional probate and juve-nile cases, in addition to a variety of family court cases involving divorce and child custody.

“Probate court is not a plaintiff versus a defendant. It’s typically a family with a problem, so it’s not a traditional adversarial

setting, like most other courts.”-State Court Administrator &

Former Probate Judge Milt Mack



MICHIGAN’S FIRST PROBATE JUDGE: PIERRE “PETER” AUDRAIN Michigan’s first probate judge served on the bench long before Michigan ever became a state: Pierre “Peter” Audrain (1725-1820).

Audrain was a French aristocrat who became a U.S. citizen in 1781. He settled in Pennsylvania in 1777 during the American Revolution. He later traveled to Detroit with General “Mad” Anthony Wayne in 1796 and declared himself the “First American Citizen of Detroit,” as is noted on his headstone (see below).

He served in several public roles over the years, including Wayne County Notary, City Registrar, Probate Judge, Justice of the Peace, and Clerk of Courts. Audrain was appointed Probate Judge at the age of 71.

Michigan Pioneer and Historical Society - Vol. XXVI notes: “In that critical period residing right at the frontier of intolerant and arrogant Britishers, he was a fearless patriot, always on the alert to bring any disloyal subjects and to notify officials of suspicious conduct of would-be American citizens.”

During the War of 1812, Audrain was a pris-oner of war, but permitted to be at home mostly, on parole. In 1813, he is named as one among the group of Americans who went to save prisoners of the River Raisin Battle, which occurred 30 miles downriver. He was 88 years old at the time.

He was only removed from these offices when he became too old to perform the duties re-quired of him in 1819. He was 94 years old at this time. He died 6 Oct 1820.

(Source: www.historicfortwaynecoalition.com)


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