Greene County probate judge seat contested

Challenger accuses judge of impropriety, judge says challenger lacks experience

Incumbent Republican Greene County Probate Judge Thomas O’Diam will face Independent Mark Babb, a criminal defense lawyer, in the race for the judicial seat on the Nov. 3 ballot.

O’Diam has been the county probate judge since 2013. Before that, O’Diam was a probate attorney for 28 years.

Babb, the managing partner at Babb, Anderson, Rowland and Smith, said he was compelled to run for the office because of O’Diam’s conduct during a three-year-long dispute with the county commissioners and two other county judges over courtroom space.

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O’Diam said it was unfortunate that the matter went to litigation but two different studies have found the probate court’s hearing room to be inadequate.

Babb also accused O’Diam of acting unethically by not removing himself from several cases in which his daughter, Brittany O’Diam, is an attorney. Brittany O’Diam has represented clients in her father’s court on 45 occasions over the last seven years without Thomas O’Diam recusing himself.

Thomas O’Diam also receives stock redemptions ranging from $30,000 to $70,000 every year from his former law firm, which is also Brittany O’Diam’s current firm. In all 45 cases in her father’s court, Brittany O’Diam has filed a waiver of disqualification, a form which all parties sign acknowledging the judge’s potential conflict of interest and agreeing to proceed.

“It gives the appearance of impropriety ... There are things that are potentially legal that are still wrong," Babb said. “And I think it’s a bad message to allow your daughter to practice in front of you because you can’t you can’t get rid of bias.”

Thomas O’Diam said his daughter and anyone else in his former law firm only practice in his court in “non-adversarial cases.”

“It’s not a trial where there’s two sides to it,” he said. “An example would be an estate administration where everybody gets along. It might be a guardianship where everybody gets along. Everybody has signed a waiver of disqualification. And my role in that type of a case is not really to make a judgment one way or the other. It’s more of administrative oversight.”

In cases where parties don’t agree to sign a waiver or the case is adversarial and requires a hearing, Thomas O’Diam said his daughter either hands the case off to another lawyer or he recuses himself and a visiting judge is brought in.

Greene County Prosecutor Stephen Haller and University of Dayton Law Professor Thaddeus Hoffmeister both said what the O’Diams are doing is legal but it doesn’t look right to the average person, possibly eroding confidence in O’Diam’s court.

“There’s always that appearance of impropriety that we should be concerned about,” Haller said.

Thomas O’Diam said Babb’s issue with Brittany O’Diam practicing in front of him indicates a “disturbing” lack of knowledge on Babb’s part.

“That also goes to his lack of experience and understanding of probate because he has no probate experience,” O’Diam said. “He’s never handled a probate case. He’s a criminal defense attorney. And in a criminal defense setting, I would agree, it would never be appropriate (for my daughter to practice in my court) because those are adversarial cases.”

Babb said knowledge and experience in the probate field are less important than treating people fairly and respectfully.

“He has more experience in probate court than I do but it’s some of those experiences that I think people have a problem with,” he said. “I am licensed and qualified to practice in any court in Ohio, or to sit as judge in any court in Ohio.”

The judge term is for six years and the job will pay an annual salary of $152,811 in 2021. Probate court cases include settling estates, guardianships of minors or incompetent adults, wrongful death settlements and adoptions.

Here are answers O’Diam and Babb provided in response to questions from the Dayton Daily News:

Q: How has your experience prepared you to fulfill the responsibilities of a probate judge?

O’Diam: I have 35 years experience, 28 years as a practicing attorney, where I focused almost exclusively in estate planning, trust and probate law. Before I became a judge, I was the only attorney in Greene County who was certified as a specialist in that area of law. And I was first appointed to replace Judge Hagler in 2013 and then elected the first time in 2014. So in addition to 28 years of experience in private practice focused in probate, I now have seven years of experience as a probate judge.

Babb: (It is important the probate) judge has the ability not just to understand the law, but to be open and understanding of people. I’ve had a lot of experience. I’ve represented, I don’t know how many, but in the thousands of clients since being an attorney. I have a lot of experience with people with very difficult situations … I supervise probate lawyers here at my firm. I’m the managing partner at Babb, Anderson, Rowland and Smith. We all do different practices so I haven’t been in the probate court, per se, but I do supervise the work of attorneys that do practice in that area.

Q: How would you improve the management of the court in the next term? And O’Diam, how have you improved the court?

Babb: I would be more fiscally conservative. It seems that we need a change in Greene County because he’s wasted a lot of taxpayer time and resources by bringing suits over the size of the court. He petitioned the state of Ohio, when the county commissioners said that he couldn’t take over another judge’s courtroom. I think that was an unnecessary task. I know that there were concerns about size and security issues involving the court. But I know that the county commission gave a lot of different options to try to address those and none was acceptable except taking a court room from two other judges, which as the Supreme Court said, he had absolutely no authority to do. So I think he’s mismanaged public funds in that way. I think he’s put a lot of time and effort into into a project or an endeavor that wasn’t necessary. And in doing so he’s broken the public trust.

O’Diam: Essentially during my first term, we have completely transformed and modernized Greene County probate court through the use of technology ... We are still trying to modernize with more technology. We’re trying to improve the case management, document management system that we have. We’re trying to do online payments, which we don’t have yet. And it’s more of an integration problem with the current case management system than not being able to do it. We’ve completely modernized our marriage license system where by the end of the year, we will probably have it all electronic ... So we’re taking each process that we have and we’re trying to determine ways in which we can apply technology to make it even faster and more efficient. Just an example, during the COVID shutdown in the spring, when everybody was under stay-at-home orders, in a period of 10 days and at a cost of $142, we took our probate court completely remote where everybody was operating out of their individual homes. And yet we still provided 100% of the court services.

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Thomas O’Diam

Age: 61

Hometown: Xenia Twp.

Political Party: Republican

Political Experience: Greene County Probate Judge 2013-present

Education: Bachelor’s in agriculture from Ohio State University, law degree from the University of Dayton


Mark Babb

Age: 47

Hometown: Lives in Yellow Springs, originally from Akron

Political Party: Independent

Political Experience: none

Education: Bachelor’s in economics from Kent State University, law degree from the Ohio State University


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