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May 20. 2013 7:02PM

Hillsborough County register of probate feels job is gutted, files petition with court


Joe Kelly Levasseur 

MANCHESTER — Alderman-at-large Joseph Kelly Levasseur was elected register of probate for Hillsborough County last November, but Manchester residents needn’t worry about that distracting him from his aldermanic duties.

Levasseur, an attorney in private practice, has never set foot in the register of probate office. It’s now part of the Hillsborough County Circuit Court, officially known as the 9th Circuit after a statewide reorganization of the judicial system took effect in 2011.

He may be register of probate, but he can’t even get his calls to the office returned. He has no real duties, other than to archive closed cases that are potentially of historic significance.

On May 15, Levasseur filed a “petition for writ of prohibition” with the state Supreme Court, claiming that the virtual elimination of the Register of Probate as an executive position by an act of the Legislature is unconstitutional. He asks the court to “immediately cease allowing an un-elected person to act and perform the powers and authority granted rightfully and only to the petitioner by the authority of the New Hampshire Constitution.”

Whether the judges will reverse aspects of a reorganization they supported in the first place remains to be seen, but Levasseur intends to pursue his case.

He said when he ran for election last fall, he knew the office had been consolidated along with District Court and Family Court into the new Circuit Court. After all, his opponent Democratic Graham Smith of Amherst told the Nashua Telegraph at the time, “I believe I am eminently qualified for a position that pays 100 bucks and requires no work.”

“I knew they had ripped out the salary,” Levasseur said, “but that didn’t stop me from wanting the job. I had no idea it had been neutralized to the point that you didn’t even have a desk or an office. I don’t believe the framers of the Constitution, when they created an elected position for the register of probate, ever believed that the only duty they would ever have would be to notarize documents.”

Actually, the original framers did not make the position elected. The state Constitution was amended in 1877 to add register of probate to the list of county offices that are elected, alongside county treasurer and register of deeds. The positions of sheriff and county solicitor – now county attorney – were also turned into elected positions.

Probate Court, widely known primarily for its role in adjudicating disputed wills, has also historically handled issues such as parental rights, custodial rights over aging parents and disposition of trusts. In the judicial system overhaul approved in 2011, all of those specialities were transferred to the Family Court division of the Circuit Court.

Matters once handled by Probate Court, District Court and Family Court are now handled by the probate, district and family divisions of the Circuit Court, under the administration of the Circuit Court clerk and deputies appointed by court administrators.

This was all designed to eliminate duplicate layers of management and save salaries on positions that paid salaries as high as $80,000. In all, 52 management-level clerk or register positions and 66 deputy positions were cut to 51 circuit court management positions, including clerks and deputy clerks.

The only elected position affected was register of probate, and that’s where Levasseur is hanging his case. He said if the Supreme Court refuses to grant him a hearing, he’ll file for an injunction in Merrimack County Superior Court.

“None of the duties stripped of the register of probate have disappeared or ended,” he writes in his brief. “Those duties are instead being performed by an unelected person not remotely or originally intended by the framers of our state Constitution.”

Robert Rivard, who ran the Hillsborough Country Register of Probate for 26 years and decided not to seek re-election last fall, said it’s all about power and money.

The savings from the consolidation are undeniable, he said, but the neutralization of the elected position was a power grab.

“The judges were offended that a normal human being, some citizen in the community elected by their peers, could oversee the probate court without the judges appointing them,” he said. “The judges appoint the clerks in all the other courts, and they were offended by not having that power over the probate.”

Calls to Donald Goodnow, director of the Administrative Offices of the Courts who is named as a defendant in Levasseur’s petition, were not returned by late afternoon on Monday. Court spokesperson Laura Kiernan said the case has been referred to the Attorney General’s office, and declined to comment, citing pending litigation.

dsolomon@unionleader.com


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