Superior Court Judge Leslie Olear of West Hartford is no doubt a profoundly grateful jurist. She was nearly turned out of office by lawmakers the other day. The House of Representative voted 78-67 to permit her to keep her job, an unusually narrow margin. The state Senate voted 28-4 to keep her, but only after the House had already approved her.
What nearly derailed the career of this judge?
The family law “system is crying out for reform,” said Hartford Democrat Rep. Edwin Vargas. “I’m not saying that this judge is the only one that doesn’t deserve reappointment. There are quite a few of them."
What is remarkable is that dozens of other lawmakers apparently agree with Vargas. If so, these lawmakers should offer us something more than bullying judges who are doing the best they can with the flawed legal doctrines and policies that lawmakers created in the first place.
I’ve never appeared before Judge Olear; indeed, I don’t think I could pick her out of a lineup if my life depended on it, so I don’t know whether the near-torpedoing of her judicial career was warranted. However, it does seem unfair to use her as a symbolic token. The fact is the family court system is in major need of an overhaul. It’s going to take more than the firing of a judge or two to fix it.
A legislative task force has been gathering testimony from disgruntled consumers of the family court services, typically, parents of young children. The focus of much of their ire is the routine appointment of guardians ad litem, adults who serve as spokespersons for the children’s best interest in contested custody battles. These guardians are appointed by the court from a list of candidates who have attended a six-session training program approved by the judicial branch.
Serving as a guardian ad litem can be lucrative work, as the fees are paid by the parties, with the court serving as the collection agency. It is not uncommon to see bills in the tens of thousands of dollars for guardians. A parent who refuses to pay the bill faces being held in contempt by the judge who appointed the guardian — imagine a collection agency with a gavel and the power to imprison upon non-payment.
In a case involving a client of mine, things approached, and perhaps exceeded, the bounds of absurdity. A client with sole legal custody of his three young children faces contentious court proceedings because the mother, absent for a time from both the children’s lives and the state, resurfaces and asks for more “parenting time,” as the court calls it. Because the parties cannot agree on what’s good for the kids, a guardian ad litem steps in.
My client is incensed that a state-appointed court functionary has been imposed on him by judicial fiat. When he made his feelings known to the guardian ad litem, she asked the court to appoint a lawyer for her. The court obliged, and the lawyer promptly got an order from the judge limiting my client’s right to speak to, but not his duty to pay, the guardian.
After months of dithering, we finally got a hearing before a new judge to remove the guardian ad litem. The trial court heard two days of evidence before sidelining the guardian for failure to communicate with both parents. This has not stopped the guardian, however, from pressing for payment of some $25,000 in fees she says she earned.
In what other line of work can you get fired for not doing your job and then ask the court for collection of fees?
The real issue isn’t that there are a few bad apples in the orchard from which guardians are chosen. The fact is, there are many excellent guardians ad litem. The real problem is we ask them to do the impossible. Who’s to say with any degree of certainty what is truly best for children?
I say Solomon was close to right in how he resolved a dispute about the parenthood of a child: He offered to cut it in two so that both claimants could share the child. The real mother, inspired by love, did not want to see her child destroyed — she told Solomon not to harm the child, thus proving that she was the baby’s real mother.
We all have a compelling interest in healthy children. Seeing to it that children of divorce are nurtured in a loving way is important work. It is important enough, I say, to require that guardians ad litem be removed from the profiteering, fee-driven world of the family courts. These guardians should be paid for, and regulated, by the state, just as are judges.
Connecticut state-court judges are initially nominated by the governor after having been vetted by the Judicial Selection Commission, an 11-member body of lawyers and lay persons appointed by the governor and legislative leaders. Once nominated, lawmakers can confirm the nominee or not, as it suits them. If confirmed, the judge serves an eight-year term. The commission also evaluates judges seeking reappointment after the expiration of their eight-year term, but second and subsequent terms do not require gubernatorial approval and go directly to the General Assembly.
It is a rare thing for a judge to be denied confirmation or reappointment. In part, that is because the initial appointment process is intensely political in nature. There are plenty of great lawyers on the list to become judge, but many of them lack the political juice to get their name onto the governor’s desk. The governor, after all, observes the first law of political dynamics — never give something, in this case a nomination to the bench — without getting something in return.
We ought to create an independent commission to evaluate and approve guardians ad litem. Subject them to reappointment and potential removal. Vet them as we do judges. The decisions they make, after all, have consequences that last a lifetime.
As read to the Planning and Zoning Commission Wednesday night:
My name is Norm Pattis. I live in Bethany, and I also own Whitlock Farm Booksellers, located at 20 Sperry Road. I have lived in Bethany with my wife for the past ten years. I am a newcomer, still falling in love with what Bethany has to offer.
I cannot be with you tonight because I am with my wife visiting two of my children who live in Seattle. I can assure you they did not leave Bethany because they could not find low-cost housing. They wanted what Bethany could not offer: Big city life, with the infrastructure and opportunities that affords.
Had they opted for something a little less congested than Seattle, they could just as easily have found an apartment or condominium unit in New Haven, Hamden, Ansonia or Naugatuck, towns an easy ten-minute drive from here. What they would have found difficulty finding is what opponents of Green Haven seek to protect: open space.
I don’t doubt for a moment that folks seeking to establish Green Haven mean well, but I reject the aura of inevitability that they rely upon. It may be that Bethany will ultimately succumb to population pressure and become yet another dismal piece of the Bos-Wash corridor -- it certainly will take a big step in that direction if we permit Green Haven’s naive dream to become a reality. But with effort, we can preserve the way of life so many townspeople have turned out to support, a life rural in character, with open space, and a commitment small-town values.
I noted with a sense of disappointment the iron fist that Green Haven now extends as a hand of friendship. They’ve fired their prior lawyers and hired Shipman and Goodwin, the very firm that took to the courts almost a decade ago to challenge this board’s decision to reject the application of another developer to build high-density housing at the Halter farm property. The message? Give us what we want or we will return to court and try to force ourselves on you. One would have thought the decisive rejection of Green Haven’s proposal just last year would have sent a message. It did not.
Instead, opponents are accused of playing fast and loose with the facts.
But who is playing games with the truth?
Green Haven’s war of words revolves around a species of fear-mongering. If the town does not approve its application, then something worse will occur. One supporter told you at our last meeting another developer is waiting in the wings, with a development plan calling for even more units than Green Haven proposes. Really? Who is that? What a silly bogey man to throw in our faces, as though we are children.
The fact is that despite earlier court action, the Halter farm property has not been developed because the nature of the land, and what is required to build there, do not support the sort of high-density development Green Haven tries to tell us will occur. Had such development been profitable and inevitable, it would have occurred long ago. Don’t be bullied by the threat of a straw man. It’s a silly argument.
Green Haven’s proposed condominium association has all the promise of a new marriage: some 31 families will join together in a co-housing enterprise, clustering their homes together in a beehive of goodwill, with a commitment to using a significant portion of the open space for organic farming. They told you, or one of their paid consultants told you, the farm will operate with such good taste that even its compost won’t stink. Really?
Green Haven sugarcoats its condominium project in promises that it will create an almost utopian village of folks devoted to the very rural values opponents of the project support. It will farm the land -- organic, of course; space will remain open; it will be family centered, offering housing for young and old. Listening to Green Haven enthuse about its project is uncannily like listening to newlyweds plan their future: love will show the way over the twists and turns ahead. Maybe. Or maybe there will be a nasty divorce in the future. After all, Green Haven proposes no ordinary marriage. It seeks to unite 31 families!
It will do all this under the cloak of condominium association bylaws that are not part of the development plan. Give us permission to build first, then we will show how it will all work later. That is not a gamble you should accept. Opponents of Green Haven are, in fact, urging you to reject this gamble.
What we’ve been able to glean from the record thus far is that some 31families will reside together in close proximity to one another. Rules will govern where they can park their cars and when; presumably other rules will govern how units are to be maintained. The 31 families will operate a farm by consensus, each family contributing $50 a month to the upkeep of an active farm. Those of us who are actively involved with management of our own land know that this is a pipe dream. You don’t pay for a tractor, the upkeep of buildings, vet bills, and seed, fence and the thousand and one expenses of operating a small farm with $1,500 a month.
And will 31 families operate a farm -- something it appears none of them have ever really done -- by consensus? What happens the first time there is no agreement, a year or so down the line when the excitement of this new experiment wears a little thin? Will dissenters be asked to leave? If they don’t pay their association fees, what happens?
Economists speak of something known as the tragedy of the commons. Properties owned by all are subject to the predations of free-riders, folks who don’t contribute. Get enough free-riders, and soon, others refuse to cooperate -- why give your neighbor a free pass in the name of a collective vision? Soon enough, the commons are neglected, becoming an eyesore. Consider the fate of many housing projects build in the 1960s. They are heaps of concrete today.
It’s easy to come to a town meeting and to create a parody of communal harmony with consultants all paid to enthuse on cue. It’s too easy. I’ve watched Green Haven talk about the paradise it wants to create in my backyard with a growing sense of concern. Candidly, I’d rather have more units with folks actually committed to maintaining their own property than I would fewer units operating under a woolly-minded commitment to the good, true and beautiful.
Green Haven also contends that this new application does not open the door to development elsewhere in town. Its new lawyer displayed its application on an overhead projection, and told us to look at it. See, he said, it says right there in black and white that it is for this project only.
Remove a clause from the application, and insert the name of the next development project to come waltzing into town. Don’t be surprised to see lawyers from Shipman and Goodwin in town with that new project, too, although this time here is what they will be saying: You approved an application identical in form and content last time with respect to Green Haven. If you reject this new project, a court could well find that you have done so for improper motives.
It’s just a different form of the same threat they are using this time.
Precedent matters in the law. We have no condominium development in town under the proposed new district Green Haven asks for. Make Green Haven’s utopian dream come true with this project, and then be ready, and soon, for the next proposal.
When my wife and I chose to buy our home in Bethany we did so because of the town’s rural character. We lived in New Haven, a city we still like, but we are not city people. It never occurred to us to live in Hamden, or in Naugatuck, or in Ansonia. We could just as easily have purchased a home in those communities -- all are an easy commute from our professional responsibilities.
As I have listened to the public comments on Green Haven I hear a similar commitment to small-town, rural values from many neighbors whom I have never met. I am happy to live in a community of these people. I did not choose Bethany because I thought its land an inexpensive place to engage in social experiments. I chose Bethany because it is quiet, it is rural and it is lovely.
Do I want the world to know that Bethany is an example of “snob zoning”? Not really. That’s not how I think of what we have here. But I care less about what National Public Radio broadcasters think of me and our town than I do about the quality of life here. Green Haven is a trojan horse. Welcoming it here will be but the first of many developments to come. Within a decade or less the town will be transformed, a seamless piece with our neighbors to the North, South, East and West.
If I had thought that was inevitable, I would never have moved here.
Green Haven is not inevitable. You can say no. We will support you. If that takes a legal battle, so be it.
Please keep Bethany a quiet, rural and lovely place.
Green Haven can find another laboratory.
NOTE: Don't take my word for it. Read a little history to understand why Green Haven's promise is little more than naive gibberish: