Does Ohio Need To Change The Powers Of Probate Judges?
This fall, the Ohio House will consider a measure that could quash public complaints about probate judges. The amendment was first included and removed from the budget. But weeks later, it appeared as a standalone bill.
In Ohio, probate judges are charged with handling wills, estates, marriage licenses and even mental competency hearings. So it shouldn’t be a surprise that, in many counties, the same judges can also appoint people to boards of developmental disabilities and public hospital boards.
Probate judges can also approve their own staff members to help tax commissioners accept returns. And they can even decide who gets to hold religious services in county jails.
Many of these appointments are done in concert with county officials. Barberton Municipal Court Judge Todd McKenney served about a year as a Summit County probate judge from 2011 until 2012, filling out the term of a retired colleague.
He says having more than one entity control county appointments allows for more diversity.
“In Summit, the county executive – or the county commissioners in other counties – would also be making appointments to those boards," McKenney says. "I think the idea was, if you spread these appointments around, what you’re going to get is a better reflection of the community. And so the probate judge may have one appointment, but the other appointing authorities ... are going to have other appointments.”
Going to the parks
But one area in which probate judges fly solo is in the appointment of park district commissioners. It’s been that way since the early 20th century. No one seems quite sure why it's that way.
“From my understanding of the statute, when the statue was created, they wanted to vest and empower somebody to make these decisions across the state. And it was going to be the probate judge," says McKenney.
"I don’t know that there was a connection to estates and money and those things," he continues. "That was the way it was done. Whether or not it continues to be, that’s up to the Legislature to decide.”
Too much power over millions of dollars in public land and spending? State Rep. John Boccieri, a Democrat from Mahoning County, says he’s not sure that the current arrangement is a good idea.
“The county commissioners should be the appointing authority. They appoint virtually every board in the county," Boccieri says. "[The assignment to probate judges] was done over 100 years ago to keep politics out of a park board. However, we see that certain judges are trying now to expand their power and scope, so we see politics is injected back in it.”
He’s referring to the bill in the Statehouse that could allow probate judges to investigate or levy fines on anyone interfering with a park boards’ mission.
"Probate judges are basically the appointing authority for the park district board members," Boccieri says. "That’s it. That’s what it says in the revised code. This would be a gross overreach and expansion of their power.”
County commissioners, or judges
Proponents of the bill say it codifies an Ohio Supreme Court decision, which said probate judges have this power since it’s not specifically given to anyone else.
State Rep. Bill Seitz — a Cincinnati-area Republican — is sponsoring the bill, and says judges need the power to avoid politicizing the boards, which could happen in the hands of county commissioners.
“Judges – I think most of us would agree – are more learned and more rational in their oversight," Seitz says. "I don’t know that there’s a Republican or a Democratic way to run a park, but I feel more comfortable leaving that with the many good judges in our state than I do with any concept of turning it over to the county commissioners.”
Rep. Boccieri had introduced a bill last year – which he may re-introduce – that requires probate judges to seek more public input when appointing parks commissioners.
That’s a good idea when it comes to any appointments – be they to hospital boards, prison chapels or park boards – according to Judge Todd McKenney.
“It’s good to ask your probate judge and make sure they have a public process for getting public input on who should be appointed to these boards," McKenney says.
He recommends that any openings be posted and "that people have a fair process to be considered. And that you consider the qualifications. I always consider these board appointments a public trust.”
Rep. Boccieri says making those board appointments may fall under a probate judge's legal purview, but having jurisdiction over the actual boards seems far afield from the probate court's other duties.
Rep. Seitz says he expects action on his bill this fall, after a great deal of testimony last month – both for and against.