Byron Macfarlane (Register of Wills for Howard County) sent a letter to the entire Howard County Delegation in Annapolis opposing “Ho Co 2-19 – Howard County – Orphans’ Court Judges – Qualifications” and calling for the abolishment of the Orphans’ Court in Howard County. Here is a copy of the letter and here is the text from the letter below:

RE: Proposal Regarding the Orphans’ Court for Howard County

Dear Senator Lam and Delegate Hill,

I am writing to you regarding local bill Ho. Co. 2-19, a proposal to amend the Maryland constitution to require judges of the orphans’ court in Howard County to be attorneys.

As you know, I’ve had the privilege of serving as Register of Wills for Howard County for the past eight years. From 2013 to 2016, I served as President of the Maryland Register of Wills Association, working with Registers from every jurisdiction in our state. Since 2013, I’ve also been a member of the National College of Probate Judges, an organization comprised of probate judges, circuit court judges, probate administrators, registers of wills, and other judicial officers with jurisdiction over estates. Over the past several years, I’ve had the opportunity to instruct a course on wills, trusts, and estates as an adjunct professor at Howard University School of Law. In this course I covered the Uniform Probate Code, used by most states, as well as Maryland’s and other states’ probate laws. These experiences have given me a uniquely broad perspective on different institutional approaches to the adjudication of disputes in estates. I’m able to compare Howard County’s orphans’ court to other courts in our state, and, indeed, other judicial entities across America. It is with this background that I oppose Ho. Co. 2-19. Rather, it would be in the best interest of the people of Howard County to abolish the orphans’ court and transfer its jurisdiction to the Circuit Court.

A judge of the Circuit Court would more ably and efficiently fulfill the role of the orphans’ court. In stark contrast to higher courts, the orphans’ court operates with the antiquated mentality that hearings before it should be exhaustive, allowing parties virtually unlimited time to make their cases. Family members have the right to air disputes in probate estates, but they need swift resolution instead of prolonged hearings that are as likely to inflame tensions as reduce them. A single judge of the Circuit Court, rather than a three-judge panel, would make their decisions more swiftly. These judges are accustomed to crowded dockets of complex civil and criminal litigation and are trained to resolve the matters before them in an expedient manner. Indeed, it is precisely the types of matters one might imagine would be handled by a probate court—challenges to wills and determinations of issues of fact—that currently bypass the orphans’ court and are heard by the Circuit Court or Court of Special Appeals. What remains for the orphans’ court to adjudicate are generally minor disputes over fees and the conduct of personal representatives, while the overwhelming majority of its work is administrative. In Fiscal Year 2018, the orphans’ court issued 767 orders and held 66 hearings. On average, the court has fewer than 15 orders to sign and just over 1 hearing per week. A Circuit Court judge or magistrate would be able to fulfill the duties of the orphans’ court in less than one hour per week.

Regarding costs, this proposal would save Howard County taxpayers over $50,000 in operating expenses for the orphans’ court and would make more space in the courthouse available to other judicial offices. It would also alleviate the burden on voters who struggle every four years to understand the purpose and jurisdictional responsibilities of the orphans’ court.

Judges of the Circuit Court and magistrates also have the infrastructure that the orphans’ court lacks. The orphans’ court has no dedicated support staff to assist with the management of the court, relying, instead, on the Register of Wills. This has been a source of contention not just in Howard County and not just recently. The interactions between Registers of Wills staff and judges of the orphans’ courts have been problematic for a very long time. The court’s need for clerical support frequently conflicts with the Register’s staff members fulfilling their duties. Additionally, the judges of the orphans’ court are three Howard County employees who don’t have any supervisory authority over the Register of Wills’ staff of state employees. This current system is a serious personnel disaster waiting to happen. The only two options to avoid that would be for the county to spend even more money to hire support staff for a part-time court with minimal responsibilities, or simply transfer its jurisdiction to the Circuit Court, which is sufficiently staffed by professionals who could facilitate this additional workload.

Lastly, I want to note that there is historical precedent for this proposal. In 1964, over 85% of the voters of Montgomery County voted to abolish its orphans’ court. The voters of Harford County followed suit in 1972, with over 75% of its residents favoring the Circuit Court model. I suspect that the voters of Howard County would similarly overwhelmingly vote in favor of transferring jurisdiction over probate to the Circuit Court.

The information I have provided in this letter in support of abolishing the orphans’ court is by no means exhaustive. For example, every judicial commission in recent Maryland history has recommended abolishing the orphans’ courts. Also, Maryland is now one of just two states, along with Pennsylvania, to perpetuate this antiquated system. It’s time for Howard County to take the lead, as we so often do, in modernizing and professionalizing the adjudication of probate matters involving its many residents. Since this will be a constitutional amendment, I hope our delegation will take up this issue in 2020 in time for the voters to have their say in the presidential election and this change to take effect at the end of the current term of the court. I look forward to working with you to make this reform a reality.

Thank you for your time, attention, and service to our great county. Please call me at 410.313.2133 or e-mail me at bmacfarlane@registers.maryland.gov with comments and questions.

If you are not familiar with Ho Co 2-19…the summary is:

FOR the purpose of proposing an amendment to the Maryland Constitution to prescribe different qualifications for judges of the Orphans’ Court for Howard County; requiring judges of the Orphans’ Court for Howard County to have been admitted to practice law in the State and be members in good standing of the Maryland Bar; and submitting this amendment to the qualified voters of the State for their adoption or rejection.

So the current bills changes the qualifications of a judge on the Howard County Orphans’ Court…Macfarlane would like it abolished and transfer jurisdiction to the Howard County Circuit Court.

I have to admit I am intrigued by the proposal from Macfarlane. I hope he receives a response from the Howard County Delegation (and of course he shares that response with me for a future article on this topic).

What are your thoughts? Which do you think is the right track…or none of the above and leave things as they are today? Let me know in the comments.

I will be reaching out to the three current Orphans’ Court Judges (Anne L. Dodd , Elizabeth Ann Fitch and Leslie Smith Turner) to get their take on the things being proposed…stay tuned for that article (if I get responses).

Scott E

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