SB 61: Ohio Courts and Procedures

I. Executive Summary:

Ohio Senate Bill No. 61 proposes a wide range of amendments and repeals to various sections of the Ohio Revised Code concerning courts and court procedures. The bill aims to update and revise regulations related to municipal and county courts, the Attorney General’s duties, civil and criminal procedure, evidence rules, and other related matters. A significant aspect of the bill is the apparent effort to align certain procedures with the Rules of Civil and Criminal Procedure, as evidenced by numerous references and the outright repeal of specific sections whose content might be covered by these rules. The bill also addresses specific operational aspects of various courts, such as the sitting locations of judges and the duties of court clerks.

II. Main Themes and Important Ideas/Facts:

A. Municipal Courts (Chapter 1901):

• Judicial Sitting Locations: The bill amends Section 1901.021 to specify where judges of certain municipal courts may sit, both within and outside the corporate limits of the municipality where the court is located. This includes detailed provisions for courts in Hamilton, Portage, Wayne, Auglaize, Miami, Crawford, Jackson, Columbiana, Clermont, Montgomery, Tiffin-Fostoria, and Fulton counties.
• For example, regarding the Tiffin-Fostoria Municipal Court, the bill states: “The judge of the Tiffin-Fostoria municipal court shall sit within each of the municipal corporations of Tiffin and Fostoria on a weekly basis.”
• Powers and Duties of Municipal Judges: Amendments to Section 1901.14 clarify the powers and duties of municipal judges, including performing marriage ceremonies, taking acknowledgments, administering oaths, adopting court rules (aligning with the Rules of Superintendence), and submitting annual operational reports.
• Civil Procedure in Municipal Court: Section 1901.22 is amended to reflect that civil actions and proceedings shall be commenced pursuant to the Civil Rules. The bill also outlines specific procedures related to service, attachment, garnishment, recovery of personal property exceeding jurisdictional amounts, counterclaims exceeding jurisdictional amounts, remitting excess judgments, and the process of certifying proceedings to the court of common pleas.
• Repeal of Specific Municipal Court Sections: The bill proposes to repeal Sections 1901.16 (Rules of court; criminal cases; annual report), and 1901.41 (Criminal jurisdiction), suggesting these areas might be adequately covered by existing Rules or other statutes.

B. County Courts (Chapter 1907):

• Clerk of County Court: Section 1907.20 is amended to detail the role and responsibilities of the clerk of the county court. It allows for the clerk of courts to serve as the county court clerk or for the board of county commissioners, with the concurrence of county court judges, to appoint a separate clerk. The section outlines bonding requirements, compensation, powers (administering oaths, issuing writs, approving bonds), duties (keeping records, recording proceedings), and handling of court finances (costs, fees, fines, bail).
• The bill explicitly grants the clerk the power to “refuse to accept for filing any pleading or paper submitted for filing by a person who has been found to be a vexatious litigator under section 2323.52 of the Revised Code and who has failed to obtain leave to proceed under that section.”
• Branch Offices and Deputy Clerks: The amended section also addresses the establishment of branch offices and the appointment of deputy and special deputy clerks, specifying their oaths, bonds, and compensation.
• Repeal of Specific County Court Sections: Sections 1907.21 (Criminal jurisdiction) and 1907.231 (Rules of practice) are slated for repeal.

C. Probate Court (Chapter 2111):

• Guardianship Guide: Section 2111.011 is amended to mandate that the clerk of the probate court furnish a guardianship guide (prepared by the Attorney General or the Ohio Judicial Conference) to newly appointed guardians and existing guardians upon their first filing after the bill’s effective date.
• The bill requires the guide to include “the rights of a ward as stated in any relevant provision of the Revised Code that is then current.”
• It also necessitates the probate court to establish a form for the guardian to sign acknowledging receipt of the guide, with the signed form to be kept in the guardianship file.

D. Civil Procedure (Title 23):

• Comparative Negligence: Section 2307.23, concerning the determination of tortious conduct in tort actions, is amended to clarify that parties seeking recovery can raise the affirmative defense of attributing fault to non-parties “at any time before the trial of the actionin accordance with the Rules of Civil Procedure and other rules of practice and procedure applicable to civil actions.”
• Testimonial Privileges (Section 2317.02): This section undergoes significant amendments, modifying and clarifying various testimonial privileges, including those for attorneys, physicians, advanced practice registered nurses, dentists, clerics, spouses, school guidance counselors, licensed counselors/therapists/social workers, mediators, communications assistants, chiropractors, critical incident stress management team members, and employee assistance professionals.
• For instance, the attorney-client privilege is modified regarding communications relevant to subsequent ineffective assistance of counsel claims in capital cases and disputes among parties claiming through a deceased client regarding competency or undue influence.
• The physician-patient privilege is revised to include advanced practice registered nurses and dentists, with detailed exceptions for civil and criminal actions, court-ordered treatment, and disputes involving deceased patients. The bill also addresses the submission of certified copies of test results in certain circumstances.
• The privilege for school guidance counselors and licensed professionals is amended and renumbered, with exceptions for clear and present danger (including child abuse/neglect), client consent, court orders, and in-camera determinations.
• Definition of Client (Attorney-Client Privilege): Section 2317.021 is amended to broaden the definition of “client” for the purposes of attorney-client privilege, explicitly including corporations and dissolved entities.
• Admissibility of Photographs of Records: Section 2317.41 is amended to align the admissibility of photographs of records with “the Rules of Evidence,” removing the specific reference to Section 2317.40. It maintains the requirements for custodian testimony and good faith destruction of the original record, as well as the provision for delivering copies to adverse parties.
• Certified Copies of Test Results: Section 2317.422 is amended to clarify that division (A) of this section (regarding notice and opportunity to inspect medical records) does not apply to certified copies of test results submitted in criminal actions under specific provisions of amended Section 2317.02.
• Repeal of Specific Evidence-Related Sections: The bill proposes to repeal Sections 2317.03 (Parties adverse may not testify, when), 2317.40 (Hospital records as evidence), and 2317.42 (Copies of hospital records).

E. Criminal Procedure (Title 29):

• Grand Jury: Section 2939.03 is amended to state that the grand jury is drawn and notified in the same manner as other jurors “under Chapter 2313. of the Revised Code” instead of referencing Section 2939.02. It also clarifies the excusal and penalty provisions, aligning them with other jurors under Chapter 2313.
• Oath of Grand Jurors: Section 2939.06 retains the specific oath for grand jurors and clarifies that the use of a prior version of the oath after March 24, 2003, does not invalidate grand jury actions.
• Plea After Demurrer: Section 2941.61 is amended to indicate that after a demurrer is overruled, the accused may plead “under the Rules of Criminal Procedure” instead of referencing former Section 2943.03.
• Arraignment: Section 2943.02 is amended to state that an accused person shall be arraigned by the clerk, who reads the indictment unless waived, and is then asked to plead. The timing of the arraignment relative to the disposition of exceptions is also clarified.
• Depositions in Criminal Cases (Sections 2945.51-2945.54): These sections concerning the taking of depositions when a defendant is confined, counsel’s attendance, the accused’s right to be present, and the procedure for taking depositions are amended to remove internal references to repealed sections and in some cases, replace them with references to “the Rules of Criminal Procedure.”
• For example, Section 2945.53 now states that the court shall secure the accused’s presence at the deposition “as fully and in the same manner as if in court,” aligning with the spirit of confrontation rights.
• Repeal of Specific Criminal Procedure Sections: A significant number of criminal procedure sections are slated for repeal, including those related to the selection of a grand jury foreperson (2939.02), duties of the Attorney General regarding grand jury investigations (2939.11, 2939.19, 2939.20), defects in indictments (2941.021), forms of indictment (2943.03, 2943.04), various aspects of trials and evidence (2945.12, 2945.30, 2945.31, 2945.33, 2945.34, 2945.41, 2945.45), and the granting of a commission to take depositions (2945.50). This extensive list of repeals strongly suggests a move towards reliance on the Rules of Criminal Procedure for these matters.

F. Attorney General (Section 109.04):

• First Assistant Attorney General’s Duties: The bill amends Section 109.04 to clarify that during the absence or disability of the Attorney General, or when directed by the Attorney General, the First Assistant Attorney General shall perform the duties of the Attorney General, “including all the rights, privileges, and powers conferred upon the attorney general by sections 2939.10, 2939.11, and 2939.17 of the Revised Code.” Notably, Section 2939.11 is among the sections proposed for repeal.

III. Potential Implications and Considerations:

• Alignment with Court Rules: The most prominent theme is the apparent effort to streamline court procedures by referencing and relying more heavily on the Ohio Rules of Civil and Criminal Procedure. This could lead to greater consistency and potentially simplify the statutory framework. However, it will be crucial to ensure that the Rules adequately address the nuances of the repealed sections.
• Operational Changes in Courts: The bill proposes specific changes to how municipal and county courts operate, particularly concerning judicial sitting locations and the responsibilities of court clerks. These changes could impact access to justice and the efficiency of court administration in the affected jurisdictions.
• Updates to Evidentiary Privileges: The modifications to testimonial privileges could have significant implications for the admissibility of evidence in various legal proceedings. The expanded exceptions to these privileges in certain circumstances may lead to the disclosure of information that was previously protected.
• Impact on Attorney General’s Powers: The explicit mention of the First Assistant Attorney General’s powers in relation to specific grand jury sections, some of which are proposed for repeal, warrants further examination to understand the overall impact on the Attorney General’s role in criminal investigations.
• Guardianship Process: The mandatory provision of a guardianship guide aims to better inform guardians of their rights and responsibilities, potentially enhancing the protection of wards.

IV. Conclusion:

Senate Bill No. 61 represents a comprehensive effort to amend and update Ohio law pertaining to courts and court procedures. The bill’s significant reliance on the Rules of Civil and Criminal Procedure, coupled with specific operational changes for various courts and revisions to evidentiary privileges, suggests a desire for modernization and streamlining. A thorough understanding of the interplay between the amended statutes and the existing Rules will be essential to assess the full impact of this legislation. The extensive list of proposed repeals indicates a potential shift in the statutory landscape governing legal proceedings in Ohio.