Has the Ohio Judiciary
Overstepped Their Bounds?
A Look at the Judiciary and Objections to Reforms in Family Law
It may be time for us to examine current Ohio laws and stated policies of the state, policies that were enacted by the General Assembly. What we need to look at is whether or not those policies are truly being followed or if the Ohio judiciary has overstepped its bounds and is now usurping the authority of the General Assembly to control the policies on how the families of Ohio are treated. This report intends to analyze if the judges of the State of Ohio have in the past stepped outside of the legal authority contained in the Ohio Revised Code, Ohio, and the United States Constitution and their Cannons of Conduct, when it comes to commenting on introduced bills that affect public policy on the families in this state.
To fully piece this together three different elements come into play that I will give general overviews of and then later show how they all piece together as the argument for telling judges to stop their objections to changes to the law that will benefit every citizen of the State of Ohio as well as the operation of the courts in the end.
Separation of Powers
The intent of separation of powers in a tripartite system of government is to limit the role members of the judiciary, executive branch, and the legislative branches have in the function of the other branches. This is to assure checks and balances between the three branches of government in its constitutional structure; that no branch became so powerful that it took authority over another. None of the three branches blatantly interfered with the operation of another branch.
The Executive Branch has the responsibility of running the daily operations of the government’s multiple agencies. They can suggest changes to the law but cannot under normal circumstances write and pass a law or rule without the approval of the Legislature.
The Judicial Branch has the responsibility of operating the court system of the state and deciding issues of controversy or criminal activity that are brought before the Courts.
The Legislative Branch is solely responsible for writing and passing the laws that govern the state and protect its citizens.
This is a simple concept that is intended to keep the power and authority of one branch from becoming totalitarian over the citizenry or the other branches of government and prevent the monarchy type of government that the original settlers to this land left England to get away from. A simple concept that is often forgotten in times when we see and hear often about the courts making rulings on laws that they did not write nor did they pass. Too often in the media frenzy of these cases, it is forgotten that it is the individual citizen and not the Courts that have brought these cases before them for a decision based on a particular set of circumstances that have occurred. The Court cannot comment until the suit is filed and must remain silent until asked to decide if a true controversy exists.
Authority to Comment Under the Ohio Revised Code
While the judges of this state are permitted to comment on newly introduced bills there are limitations on what they can comment on if they oppose and follow the procedures that they have to follow in doing so. The following is the Ohio Revised Code that spells out the process with a couple of key phrases highlighted that have been keys to passing bills that make changes to family law.
105.911 Judicial impact statement. (Emphasis added)
(A) If a bill or resolution introduced in the general assembly appears to affect the revenues or expenditures of the courts of Ohio, to increase or decrease[i] the workload or caseload of judges or members of their staffs, or to affect case disposition, the Ohio judicial conference may prepare a judicial impact statement of the bill or resolution on its own initiative or at the request of any member of the general assembly. The Ohio judicial conference may prepare a judicial impact statement before the bill or resolution is recommended for passage by the house of representatives or senate committee of the general assembly to which the bill was referred and again before the bill or resolution is taken up for final consideration by either house of the general assembly. The judicial impact statement shall include an estimate, in dollars, of the amount by which the bill or resolution would increase or decrease revenues or expenditures and any other information the Ohio judicial conference considers necessary to explain the fiscal effect of the bill or resolution. The statement also shall include an analysis of the bill or resolution's administrative and procedural effects on the courts of this state.
(B) The Ohio judicial conference shall distribute copies of a judicial impact statement as follows:
(1) For consideration by the senate or house of representatives rules committee, or the standing committee to which a bill is referred, two copies to the chairman together with a copy to each member of the committee;
(2) For final consideration, a copy to each member of the house that is considering the bill. If the member who introduced the bill or resolution or who requested the statement is not a member of the house or rules committee considering the bill, the Ohio judicial conference shall send the member a copy.
(C) In preparing a judicial impact statement the Ohio judicial conference may request any court, department, division, institution, board, commission, authority, bureau, or other instrumentality or officer of the state or of a county, municipal corporation, township, school district, or other governmental entity of the state to provide any of the following information:
(1) An estimate, in dollars, of the amount by which the bill or resolution would increase or decrease the revenues or expenditures received or made by the court, instrumentality, officer, or entity;
(2) Any other information the Ohio judicial conference considers necessary for it to understand or explain the fiscal, administrative, and procedural effects of the bill or resolution.
The Ohio judicial conference first shall contact the Ohio legislative budget office for information regarding the fiscal effects of the bill or resolution. If the Ohio legislative budget office does not have the fiscal information sought by the Ohio judicial conference, then the Ohio judicial conference and the Ohio legislative budget office jointly may request any of the entities described in division (C) of this section to provide the fiscal information.
A court, instrumentality, officer, or entity shall comply with a request for information as soon as reasonably possible after receiving it. The Ohio judicial conference shall specify the manner of compliance in its request and, if necessary, may specify a period of no longer than five days for compliance. The Ohio judicial conference may consider any information provided under division (C) of this section in preparing a judicial impact statement.
(D) The failure of the Ohio judicial conference to prepare a judicial impact statement before
a bill or resolution is taken up for consideration by the house of representatives or senate committee, or by either or both houses for final consideration, shall not impair the validity of any bill or resolution passed by either or both houses of the general assembly.
(E) This section does not affect the duty of the Ohio legislative budget office to prepare fiscal analyses pursuant to section 103.14 of the Revised Code.
(F) As used in this section:
(1) With regard to a bill or resolution, "procedural effects" includes all court-related procedures, including pretrial, trial, and post-trial proceedings.
(2) With regard to a bill or resolution, "administrative effects" includes matters pertaining to the business of the courts, including clerical processes, records management, planning and research, changes in court personnel, calendar management, facilities and equipment, workload distribution, court reorganization, and the creation or addition of judgeships.
Effective Date: 10-06-1994
Related Legislative Provision: See 129th General Assembly File No.39, SB 171, §4
The Ohio Revised Code is clear in its intent and in showing under what conditions the judges of the state are allowed to comment on proposed legislation or resolutions.
They must show that a proposed bill will increase or decrease the workload of the courts.
They must show that by asking the budget office to analyze the cost of the proposal to the courts.
The third element is the proof that these proposals would make changes to procedures or the administration of the courts.
What the judges are not permitted to comment on is changes to the law that affect the State’s overall policies or the court's use of items such as evidentiary standards that they are to use. Those are set by the Legislative Branch of the state in the manner in which the law is written. Procedures for the handling of cases are well defined which are the Rules of Civil Procedure that the Courts have the authority to define, albeit with input from the judges, attorneys, and the public of the state.
To provide a bit of a history of comments on past family law bills, the judges have always complained of a loss of discretion. Discretion or the use of preponderance standard of review is not an administrative process; it is a function of law that is determined by the Legislative Branch.
In past bills where they have asked for a financial analyst of these changes, the budget has come back with a showing of no additional cost. That analysis was asked for on GA 125th HB232, and GA 126th HB688 but never asked for with either GA 129th SB144 or HB253 even though the judges opposed the latter two bills partially on claims of increased costs to the courts.
To expand upon and explain this claim that the courts would lose their “discretion”, we need to look at the standard of review currently in use. Currently, the courts use a preponderance of evidence standard in making determinations of custody. This allows for the use of extremely broad use of and personal interpretation of the evidence presented rather than the use of clear and convincing evidence[ii] that the United States Supreme Court stated within Santosky v Kramer[iii] was the only acceptable standard of review for the courts to show that there exists a compelling state’s interest to not interfere with a parent’s legal rights. Any time that a Court decides terms under which a parent may or may not see their child there must be a clear show as to why the rights of that parent should be changed to protect the child.
The mere dissolution of a personal relationship through a divorce or personal choice is not sufficient to interfere with the rights of a parent. If it were, then every child of every divorcing couple would have to be taken into the care of the state for protection.
Legal definitions of both follow:
preponderance of the evidence
n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. The preponderance of the evidence is required in a civil case and is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.
clear and convincing evidence[iv]
n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case.
One needs to question why a court or its officers would not want to be held to the highest standards and quality of work when it comes to deciding on custody. Making this claim also steps far outside of the bounds of what they are permitted to comment on as stated under the Ohio Revised Code.
Ohio Code of Judicial Conduct
The third element is what the Judicial Cannons or Code of Conduct[v] have to say with respect to how and under what circumstances a judge may comment on the law.
RULE 3.2 Appearances before Governmental Bodies and Consultation with Government
Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except as follows:
(A) In connection with matters concerning the law, the legal system, or the administration of justice;
(B)In connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties;
(C) When the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary capacity
Every time there have been bills introduced that concerns family law, or whether it changes to the way we view and award custody or alimony reforms (GA 129 HB348), the judges have asked for and been allowed meetings with representatives or senators to discuss these changes. Based on their code of conduct, these meetings are in direct violation of permissible behavior for the judiciary of Ohio. They have not appeared or been summed to testify under the power of subpoena as would be indicated by their own Code of Conduct. I will verify that I have been at one House Public Testimony Hearing where Judge Richard Stuckey[vi] who at that time was a sitting on the bench in Stark County, testified against HB232. The judges did ask for a meeting with us to discuss the “problems” within HB232 but when told that we were willing to meet, they never stated the time or place for that meeting to take place when we accepted their offer. The second was a stakeholder’s meeting held at the request of Senator LaRose where a judge gave his opposition to SB144. I cannot verify but was told that the judges also were granted a meeting with Representative Pelanda on her alimony reform bill, HB348. I have to wonder how many other meetings have taken place contrary to what the Judicial Code of Conduct states that the judges may do.
The Tie Together
To tie this all together for ease of understanding, the Separation of Powers intention is to keep the branches of government from interfering with the function and authority of the coexisting other branches of government, it is in short, a checks and balances principle with the intent to keep all from having too much power over the citizens that they represent. The Ohio Revised Code places specific requirements on what, how, and what must be shown for the judges to comment on a proposed bill or resolution that is being considered by the Legislative Branch which is responsible for creating policies and laws that govern the state. The final is the restrictions and under what terms a judge comments on law outside of deciding on a “case of controversy” that is brought before the Court.
If the State of Ohio is to move forward with long-needed updates to the policies that address the families of Ohio this must stop today. These reforms have been called for twice in the past in written reports with the Task Force on Family Law in 2001[vii] and again with the Ohio Father Commission’s report to incoming Governor Strickland in 2007[viii]. The introduction by the General Assembly of four (now 7)[ix] previous bills speak volumes in itself of the need for rethinking these policies now and that these laws be updated to meet the needs of current society and its problems. That will not take place until the General Assembly tells the judges of the state to return to their area and stay out of the legislative process.
As an appendix to this report, I will include the Judicial Impact statement from GA 125th HB232 and GA 129th SB144 that clearly show that the judiciary has stepped over the limited bounds on commenting on the proposed changes to Ohio’s Shared Parenting law. While in each of their comments on these bills, the Judiciary has complained of what they claim is a loss of confidence in the judiciary, it is this insertion into the legislative process that is why many have lost confidence in the judiciary. Those who have gone through the process of the family courts of Ohio have very much lost confidence in them and in the willingness of the courts to reduce the involvement of a parent for no other reason except that the parents can’t get along or have chosen to dissolve a personal relationship. Add to this the slowness and expense of what should be a relatively simple legal process taking years to complete while draining bank accounts and the college funds of children, confidence is not all that has been lost by many. For those of us who have been working on these reforms, our confidence is lost in the numerous smoke screen defenses that have been put forth in the Judicial Impact Statements that are clear misinterpretations of the bills that they have chosen to comment on. These are done to make it appear that they are doing a proper job for the State of Ohio when they have failed all. Confidence has been lost because of inconsistencies in the decision-making of the judges of this state in the cases before them. Two cases with the same circumstances more than not produce differing results all because of the broad discretionary powers that exist in an area of law that lacks two major factors that the judges need to assist and guide them in their decisions.
It is time to tell the judges of the state to respect the families of the state, the legislators of the state, and the Constitution of the state, and return to what they were elected to do; decide cases of controversy, not legislate.
Legislative Director
440-281-5478
legislation@ohiofamilyrights.com
