Speeches

1999 Ohio State Bar Association
Annual Meeting
Chief Justice Thomas J. Moyer
May 12, 1999

I deeply appreciate the opportunity afforded the Chief Justice each year to offer thoughts relating to the administration of justice in Ohio. In the past year the organized bar and the Ohio Supreme Court have continued to demonstrate the benefits that flow from a professional, collaborative relationship. Thank you, President Petzold and officers, and Denny Ramey for sustaining that relationship. This year I will review some of the ways in which our profession is today, and must in the future, anticipate and respond to change.

Transition to a new century is the focus of virtually all those who offer any opinion regarding human conduct during the last year of a millenium. From "The Best of the Last Thousand Years" edition of The New York Times weekly magazine, to the Y2K phenomenon, our minds are directed, not to how we live today but how we will live in the next century.

The Washington Post made perhaps the most interesting tongue-in-cheek choice nearly five years ago for its Man of the Millenium. The editors of The Washington Post decided that it would be entirely too delicate to designate a scientist, or a philosopher--or even an attorney--as a symbol of a millenium in which the world so dramatically--and so violently--changed.

The Post’s Man was Genghis Khan, a Mongol warrior who, through sheer brutality, stretched his empire from the Pacific Ocean to Eastern Europe and from Siberia to the Persian Gulf. It dwarfed the empires of the Romans, of Alexander the Great, of Islam, and even the Soviet Union.

His empire instituted a free trade zone and used post houses and messengers to communicate from one end of the empire to the other. The Mongols, in other words, instituted global communications some seven centuries before the invention of the Internet by the Vice President of the United States.

But Genghis Khan’s legacy was not free trade or global communication--it was brutality. No conqueror before and none since have matched Khan’s efficiency for slaughter or success in acquisition.

Genghis Khan lived in an uncivilized world. The world has changed dramatically since the 13th century. The worldwide emergence of democracy is perhaps a more appropriate or significant event than any one person could possibly create.

Soon after the proposed United States Constitution was drafted in 1787, Benjamin Franklin was asked by a woman, "Well, Dr. Franklin, what have you created—a republic or a monarchy?" Franklin replied, "A republic, if you can keep it." Let us set that thought aside and return to it later.

I would like to first review with you a few of the examples that demonstrate our ability to respond to perpetual change—change often created by others.

Changes to the Lawyer Discipline Process

The Supreme Court recently responded to the excellent, thoughtful recommendations of the Bell Commission and adopted substantial changes to the rules by which lawyers and judges are subjected to discipline for alleged and actual misconduct. The new rules will take effect September 1st. They are designed to streamline and channel more resources to the discipline system.

Under the new rules:

Finally, the record number of lawyers and judges—122--sanctioned by the Court last year convinces me that Thomas Jefferson was speaking to us when he said, "We need not only smart people; we need virtuous people."

Y2K PHENOMENON

We have a responsibility to be certain that all of the computers in the court system recognize the year 2000. We have taken measures to fulfill that responsibility. There is, however, another concern for the justice system produced by the Y2K phenomenon. We receive predictions of as much as two trillion dollars in Y2K related lawsuits. Such predictions have caused the Congress and the Ohio General Assembly to consider legislation in response to the predictions. The simple fact is, we do not know what impact Y2K litigation may have upon the management of cases in the Ohio court system. But we should be prepared. Therefore, the Supreme Court has been working with the Ohio Commission on Dispute Resolution and Conflict Management to develop a program that would make available trained mediators as an alternative to costly and burdensome litigation. Ohio has a number of court-employed mediators and many private mediators who can be available to diminish the impact upon our trial courts and produce expedient resolution of disputes if Y2K problems produce an extraordinary amount of litigation. A symposium on related issues will be offered judges and lawyers for CLE credit and to businesses as a public service. The symposium will focus on potential ways to use dispute resolution to resolve Y2K conflicts outside the courtroom.

HOUSE BILL 484

Congress recently adopted the Adoption and Safe Families Act. It requires children in temporary custody to be moved to some form of permanent custody pursuant to time deadlines. The Ohio General Assembly took the bill a step further to mandate that any child who has been in foster care for 12 of any consecutive 22 months must be moved ideally to adoption but at least toward permanent custody.

In 1997 there were more than 32,000 Ohio children in some type of temporary care. Some children are in foster care for five or more years. Unfortunately, many of these children will never be reunited with their biological parents. They are in limbo because the system has not moved them from temporary to permanent custody.

This legislation forces action and will give these children an opportunity to establish a permanent home with adults that can provide a stable and caring environment. But for this legislation to be effective, we must each do our part.

The General Assembly has given us a very challenging deadline. By July 1st of this year petitions in one-third of the cases must be filed and by July of next year decisions must be made in each of these cases. Cuyahoga County expects nearly three thousand such cases and Summit County estimates 525 cases—in addition to their normal caseload. The trial courts will need additional resources to comply with the law.

To help meet the challenge, I have identified a pool of experienced judges who will be available to work with trial courts to expedite the resolution of these cases. This team, consisting of retired judges knowledgeable in the area of juvenile custody cases and a select number of sitting judges, will be assigned by the Chief Justice to enable the courts to move these cases to resolution.

The General Assembly has worked to make this legislation effective and the judiciary will do its part—but it will truly take a collaborative effort of attorneys, judges, caseworkers and others to place these children in permanent homes.

FUTURES

One transition from this century to the next that does not rely upon the idiosyncrasies of a computer is the Ohio Courts Futures Commission. Fifty-two members of the Commission have worked for nearly two years studying the Ohio court system, analyzing its many strengths and its weaknesses, searching for ideas from other states and placing before the public a number of concepts and ideas that deserve further public discussion and consideration by the full Commission as it prepares its final recommendations. The Commission’s progress report was published in the March 1, 1999 issue of OBar and the Ohio Official Reports. If you have not read it, please do, as it is the responsibility of each of us to create a court system for the future that will retain the best of what we have and determine what we need to assure our citizens that the court system of the future will be efficient, fair and understood.

In the end, the vitality and the ability of any justice system to preserve civility and the rule of law depends upon citizens’ perception of the fairness, accessibility and efficiency of the court.

I urge each of you to read the Progress Report, attend one of the two or three remaining public comment sessions—the eighth is being held in Youngstown this evening—or communicate with the Commission through its website or by letter.

The skepticism with which Benjamin Franklin told his fellow citizens that the new Constitution created a republic derived from his belief that a democracy or republic is the most difficult form of government to sustain. He was echoing the wisdom of the Greek philosopher who said "only the educated are free" and of James Madison who observed that "the advancement and diffusion of knowledge is the only guardian of true liberty." The authority of dictators and autocrats does not flow from the consent of a knowledgeable and interested citizenry. The rule of law in a democratic society receives its vitality from the desire of the people to live civilly.

Noted author Francis Fukuyama in his new book The Great Disruption presents a view that on a fundamental, genetic level, human beings want to get along. He explains that we humans have an intrinsic desire to be accepted in a law-abiding society. While we will never have 100% compliance with the rules of society, the vast majority of the population prefers laws to a reckless society of lawlessness.

Everett Carll Ladd of the University of Connecticut agrees with Fukuyama in his book in which he asserts that America is witnessing an "explosion of voluntary groups, activities and charitable donations that is transforming our towns and cities." He supports his premise with results from a CBS/New York Times poll that says the percentage of Americans who regularly do volunteer work has risen 14% since 1985.

These findings and assertions seem to contradict the apparent proclivity for violence with which America is associated by ourselves and by other civilized countries.

The current discourse in America regarding the scars in our national character present an opportunity, indeed a responsibility, to our profession. The recent OSBA mail poll affirmed what we know—that 73% of attorneys serve on the boards of civic and charitable organizations. But more importantly, it is lawyers who are trained to apply rational decisions to disparate facts. Who better than lawyers understand what is required for us to sustain the rule of law in a democracy for over 200 years? Who can translate the theories of the Federalist Papers into practical government if lawyers cannot? Lawyers can and should be assuming a dominant role in our days of introspection and responses to the diminishing of our fundamental values.

How many of our youth understand that the great mark of civilization is the law? With so many conflicting accounts of world news and messages in the popular culture it is not unrealistic for people, especially young people, to begin questioning the importance of the rule of law in our society.

In the last year, I have visited a number of schools and have been consistently impressed with the level of interest and quality of questions that our students are asking. The vast majority of them truly want to learn about the system. This afternoon I will be visiting Bedford Heights High School and plan to visit with students at Brush High School in Euclid tomorrow morning. Many of you have had similar experiences.

Mock trials, Youth for Justice activities, the Supreme Court’s offsite court program in which over 20,000 students have participated, a newly designed brochure directed at the thousands of students who visit the Supreme Court each year, and other bar-sponsored activities have placed members of our profession in contact with our youth at a time in their lives when they are forming their opinions about our institutions.

Law for Kids website—Arizona Bar Foundation and Supreme Court—where young people can learn how law affects them—interact with a lawyer and students who have learned through their personal experience with the criminal justice system. Even recognize a "Youth Citizen of the Month."

Today I sent a letter to the president of every bar association, including the specialized bars, in Ohio asking them to raise to a high priority the education of our youth. It should be our goal that every middle school and high school would have a formal relationship with a bar association for the purpose of exposing our youth to the unique resource we represent in the teaching of civility, the rule of law, and the importance of thoughtful, knowledgeable citizen participation in the development of public policy in the democratic process. And no one has the potential to enhance the knowledge of our youth about what it means to live in a civil, democratic society as we. Let us creatively apply our legacy to a new challenge.

Thank you.