Posted: Feb. 19, 2010
TEST OF WILLS
By Celia Cohen
The register of wills is a county office that is just this side of invisible. In a contest for dignity, it could be outclassed by a Sudoku puzzle.
The prime function of the office, which is elected, seems to be teeing up judges. Diane Clarke Streett, a Democrat who was the New Castle County register of wills, took her oath Monday for a Superior Court judgeship. Joe Flickinger, a Republican who was there before her, sits on the Court of Common Pleas.
It brings to mind the old joke that a judge is a lawyer who knows the governor. It might not be a bad lawyer, but then again, it might not be a joke, either.
Perhaps the matter could be settled by a distinguished panel of judges, say, Chief Justice Myron Steele, who was once a Kent County Democratic chair, along with Chancellor Bill Chandler, who used to be the counsel to a Republican governor, and Superior Court President Judge Jim Vaughn Jr., the son of a Democratic state senator.
The work of the office is not useless. It is essentially an administrative arm of the Court of Chancery for dealing with the legal intricacies of wills and estates. If a rationale ever existed for having an elected official in charge, however, it has been lost to time.
Not to mention there is the curious anomaly of county officers with county employees assigned to the duties of a state court.
Gov. Jack Markell, who has declared death to inefficiencies, suggested last month in his State of the State address that the register of wills should go, the one in New Castle County, the one in Kent County, and the one in Sussex County.
This is easier said than done. The office is written into the Delaware Constitution, so it would take a constitutional amendment to get rid of it.
Constitutional amendments have to be passed by the General Assembly with a two-thirds vote, and it has to be done twice -- in consecutive legislative terms. The first leg of the amendment could go through this year, but the second leg would have to wait until the legislature, refreshed by the 2010 election, gets back to Dover next January.
Besides, the counties are interested parties here. The fees collected by the office go to them. For example, New Castle County typically pays out $1.5 million to run the office but takes in $3 million.
Why would the counties want to lose that action? Bernie Madoff could not do that, and this is legal.
Markell already took one step toward emptying the office. By putting Streett on the bench, he created a vacancy. The way the opening gets filled, according to the state constitution, is the governor is supposed to appoint someone.
This leaves Markell in the position of filling an office he would rather see disappear. It would be so un-Markell-like to be so inefficient. He could try not filling it, but there is something un-gubernatorial about blowing off the constitution.
That oath about promising to uphold and defend it can be so inconvenient at times.
Fortunately Markell has a chief strategy officer for these knotty situations. He is Brian Selander, whose chief strategy for the time being is ducking questions about what the governor intends to do.
"He is giving it consideration," Selander said.
Little attracts more notice in political circles than an office for the taking. Markell is getting suggestions about using it as a reward to give to a fine fellow Democrat or as a political safety valve to stow someone who might otherwise cause a party primary.
The names being mentioned most often are Nina Bawa, the chief deputy register of wills, who could be elevated if Markell decides he has to fill the job, or Ciro Poppiti III, a lawyer who is the New Castle County Democrats' vice chair.
Whatever Markell does, he can be outfoxed by the political calendar. Even if he names nobody, the New Castle County office is up for election this year, and it comes with a four-year term and a salary of $83,900 a year.
Whoever gets it keeps it. Even if a constitutional amendment is adopted to abolish the office, it cannot happen retroactively.
For 84K, a lot of people could not care what the governor wants. By the time of the candidates' filing deadline on July 30, there might be a line.