Speeches

State of the Judiciary
Ohio Judicial Conference
State of the Judiciary
Chief Justice Thomas J. Moyer
Sept. 10, 1998

Thank you, Judge Dartt and the officers of the Judicial Conference, for once again providing the Chief Justice with this opportunity to offer comments on the state of the judiciary of Ohio.

Two billion dollars in paper wealth disappears in a matter of hours when the stock market takes a sudden drop. A plane, operated by one of the safest airlines flying to one of the world’s safest cities, falls out of the sky.

These two jolting events remind us that we are all subject to uncertainty. The market drop affected the line worker and the factory owner. It was not just powerless children who died in the Swissair crash but also three world-renowned medical researchers.

These and the many other uncertainties in our lives are the product of the constant change about us. Alvin Toffler’s book, Future Shock, published a generation ago, predicted our present. Constant change creates stress. The signs of change and the accompanying stress are everywhere: in our courtrooms, school rooms, boardrooms and living rooms.

In these rollercoaster times of stress and constant change it is human nature to try to grasp some semblance of order in our lives. We search for a situation or small piece of the world that provides stability and gives us some element of control.

As I contemplated how to describe the state of the judiciary in 1998 without reciting the impressive but rather boring statistics you have produced, it occurred to me that it is that search that oftentimes brings people to the court system. They are looking for justice and order, a means to take control of the challenge they are facing. To these, the call for order in the court is more than tradition: It is their search for refuge. I would like to review a few of the ways in which our state court system creates that refuge.

Dispute Resolution

There is no better example in the justice system of people taking control of circumstances in their life than dispute resolution.

Dispute resolution provides parties engaged in legal controversies with greater control to take charge and resolve their disputes in a reasonable time and at less cost than in the traditional adversary setting.

There was a time when we called it alternative dispute resolution. But we are moving away from the time when it is considered as a noble experiment or an alternative to the traditional means of resolving legal disputes.

Today, in 1998, we can see that dispute resolution is becoming the accepted practice, the first means for settling conflicts in the workplace, neighborhoods, homes and schools.

Dispute resolution is now ingrained in Ohio’s legal culture. Court and community programs have multiplied from 11 in 1990 to 121 in 1998, and that does not include the more than 600 peer mediation programs in schools throughout the state.

Dispute resolution is an effective tool because it bestows power in each party to present his or her viewpoint of the controversy in a setting distinguished by its civility. Once the viewpoints are fully aired, the parties work together to create what they believe is a fair and reasonable settlement. They have not ceded the resolution of their dispute to the wisdom of an arbitrator or a judge; they have drawn upon their own rationality and common sense to determine the outcome.

Many of us who have been involved in the process have heard this refrain from those involved in dispute resolution: "I just wanted to tell my side of the story. I just wanted to be heard." This is a ringing testament in a time when so many individuals feel that they are powerless to shape outcomes, especially those that have a direct impact on their lives.

One example of the common refrain is an incident in Stark County that reminds us how important it is to provide a voice and forum to those involved in disputes.

The case involves a teenage boy who was in a serious auto accident. His car was hit by a young woman driver whose car had crossed the center line.

Both the young man and young woman escaped with minor injuries, but the young woman’s mother died as a result of the accident. Following the accident, the teenage boy, who had a scholarship to a prestigious college, became despondent because he was involved in the fatal accident. His parents filed suit, believing the accident triggered a downward psychological cycle from which their son would not recover.

The case was referred to the mediation program in the Stark County Common Pleas Court. The mediation session provided the boy with the opportunity and place to acknowledge the young woman’s loss of her mother, but to also express his trauma and grief caused by his involvement in the fatal accident. An agreement was reached and both parties are now going one about their lives.

For the past two years, the Supreme Court has sponsored a mediation program for the courts of general jurisdiction in Montgomery, Clinton and Stark Counties. Statistics show that mediation settlement rates have climbed from an average of 25% to 69%.

Based on the success of the three-county project, the Supreme Court this year expanded its pilot program into 12 additional counties. With a nearly one million dollar appropriation from the General Assembly, more local courts in both large and small counties are extending the reach and scope of a variety of dispute resolution programs.

Although each project is designed to address local needs, the general goals are similar. They include increasing awareness among the bench, bar and general public; expediting case processing; producing early, effective resolutions of pending cases through voluntary settlements and continuing to gather data to assist courts in maintaining high quality programs.

Ten of the 12 projects have a distinct focus on family and juvenile issues. The Richland County Juvenile Court’s Victim/Offender program is one example of innovation and judicial commitment to success. Under the guidance of Judge Ron Spon, volunteer community mediators work directly with youth mediators. The young people are recruited from the local high school peer mediation programs and provide additional training to work alongside the adult volunteers.

The youth mediators are able to help clarify underlying issues and perspectives of youthful offenders and victims. Understanding a young person’s perspective, language and values helps court staff and mediators know how to better address the issues in a case. For example, in one case a victim’s parent filed an assault charge, but it was the youth mediator who recognized that the incident actually involved a gang initiation ritual.

When we allow individuals the opportunity to participate, to help shape the outcome we see positive, sometimes astonishing, results.

Drug Courts

Every week in the drug courts operating across the state, drug offenders are taking responsibility for their crimes and the road to rehabilitation. A significant number are regaining control of their lives because judges and court personnel care about their recovery.

Since the first drug court was established three years ago, I have encouraged local judges to take the lead to develop and improve these programs to address the increasingly crowded dockets of nonviolent drug offenders. In 1997 Ohio received more drug court funds from the Department of Justice than any other state. In 1998 we have seen the number of drug courts increase from 9 to 17. It is noteworthy that 6 of the 17 are juvenile drug courts. Often, those young people who do not make progress in overcoming their addiction years later are in criminal court facing more serious abuse and neglect charges.

Again, each court designs a program to meet local community needs and sensibilities. But the goal remains the same: provide early, court-supervised treatment to nonviolent offenders to stop the revolving door in Ohio’s criminal courtrooms.

The judges who preside in drug courts deserve recognition for the significant amount of time they invest. Most of the judges involved in drug courts are required to develop creative scheduling to manage the other cases on their dockets. But there is more than scheduling. Judges are required to more closely monitor the progress of those in treatment than has been the case in the past.

Judge Froelich this spring invited me to participate in the graduation ceremony in Montgomery County. The poignant personal stories of how former drug users had taken control of their lives was a testament to their determination and to the commitment of the judge, the treatment professionals and court personnel.

The Supreme Court last July received a grant of $186,500 from the U.S. Justice Department to continue and expand the program. The funds will be used for further training, to establish a computer network linking drug courts throughout Ohio and to continue to evaluate the effectiveness of the programs.

Domestic Violence

We also have moved forward with new measures that provide victims of domestic violence with greater controls and additional protection.

For some time, we witnessed the alarming increase in cases of domestic violence. In response to this disturbing trend I named the Supreme Court’s Domestic Violence Task Force, chaired by Judge Jeffrey Ingraham and State Senator Merle Grace Kearns. The task force’s findings and report led to changes in court procedures, the Revised Code and law enforcement practices. These changes have increased the safety of both actual and potential victims of domestic violence.

One of the changes requires courts across the state to use a standard form for protection orders. Using a standard form sounds like a simple, even a bureaucratic matter. But it has made a difference in providing protection to the most vulnerable. Earlier this summer, the police in Springfield were called to respond to a domestic dispute. Before going into the home, the officers checked the LEADS computer system and saw that a Highland County court had issued a protection order against the suspect. When the police entered the house they arrested the suspect who was attempting to take from their grandmother three children, all under the age of three years old.

Mike Sheils, the Springfield city attorney, later credited the revised protection order form and the fact that it was posted on the law enforcement computer network with saving the three children from potential harm.

Families in Court

Few areas of the law are changing as rapidly as those which affect families. Because of shifting attitudes and new realities, the cases coming before probate, juvenile and domestic relations judges are far different and more complex than those of a decade or two ago. In some families parents feel they have lost control of their children; in others, children suffer from out-of-control parents.

As most of you know, the Family Court Feasibility Study did not recommend mandatory family courts in all 88 counties. The panel did recommend simplifying the system, making it easier for those families in distress to understand and navigate the legal system. Better communication and coordination among courts, judges and their staff are desirable goals.

Toward that end, we are in the final stages of selecting seven counties to participate in pilot projects to refine their operations, working towards improved communication and coordination. For example, Clermont County, which has received preliminary approval as a pilot site, is proposing direct assistance for pro se litigants, diversion of all appropriate cases to mediation and providing each court access to the other’s data base.

The Judicial College is increasing its efforts to better meet the education needs of judges who work with families. In addition to continuing the courses for probate, juvenile and domestic relations judges, the College will expand its offerings to mirror the objectives of family courts.

In this unsteady, unsure world we are all searching for surer footing. Whether it is using mediation to resolve a business dispute, the guidance of a drug court to reclaim our lives or a family court that provides solutions--not run-arounds--when our families are in disarray, the Ohio court system is facilitating the search.

As judges, we, too, are looking for better and more efficient ways to manage dockets, personnel and precious time. In the past five years there has been a sharp increase in the number of courts that have installed new computer systems. Today, 89% of Ohio courts are automated.

The breakthrough came in 1993 when the General Assembly adopted my plan to finance court technology with funds generated through a court-user fee.

The evidence shows that courts have used the funds wisely. They are not on the cutting edge of technology; instead, they are making effective use of applied technology that is appropriate for meeting their needs.

The Office of Court Technology over the last four years has worked with 105 trial courts, offering a range of appropriate services. For those judges who do not always understand the terms that are peculiar to the computer world, the tech service staff acts as translators. In addition, the staff helps determine what hardware and software is necessary and then assists them in purchasing the technology that most fits their needs.

It seems that today, everyone is talking Y2K. This is computer shorthand for the situation that many computers originally programmed to recognize only the last two digits of a year may fail on January 1, 2000, when the machines may assume it is 1900.

My first priority is to ensure that the Supreme Court’s system is prepared to pass through the year 2000 with no serious glitches.

Toward that end, the Court’s desktop hardware and software is 2000 compliant. We are continuing to work to ensure that all court support systems are also compliant.

It is an issue that deserves our attention. I trust that you agree.

Just as in the past, we continue to stand ready to assist you. In the coming days we will notify local courts about regional one-half day workshops to assist you in evaluating your court’s hardware and software and whether they are 2000 compliant. The goal of the workshops will be to provide you with specific items that must be attended to, the obvious and not so obvious. This would include the computer systems’ handling of critical court dates and embedded dates in fax machines and printers.

Computers are just one example of how our world has changed dramatically during the past 25 years. Of course the list goes on: cell phones, satellite dishes, medical advances, cultural issues and changing family structures.

As individuals we may find a number of these changes unsettling. But as judges we view them within the context of society and the law.

The fact of the matter is, the world is changing, sometimes at almost breathtaking speed. As Judge Leslie Spillane has observed on a number of occasions, we as judges can sit back and watch the world change around us, then face the daunting task of trying to catch up, or we can take an active role and prepare for the changes ahead.

This is the basic premise of the Ohio Courts Futures Commission. It is to get ahead of or at least keep pace with the dramatic changes we know will accompany us well into the 21st century. Toqueville observed more than 150 years ago that in America all public issues are eventually resolved in the courts. That seems to be as true today as it was in the 1830s. And it will likely be true in 2015.

Much has been said and written about the Futures Commission during the past year, including some 100 newspaper articles. So this morning, I am going to make just one or two observations on the topic.

One of the most important goals of the Commission is to suggest recommendations to improve public understanding and appreciation of the court system. There is the belief that that understanding should exceed a grasp of the mere basics. The goal is to increase the public’s level of knowledge to the point where their expectations of their justice system are realistic and their belief in it is idealistic.

This is crucial because there is more than enough evidence that the public lacks not only the knowledge but also trust in the system. A Gallup poll published in the ABA Journal in 1994 reported only 15% of the public had a great deal of trust in the ability of the justice system to meet society’s needs now or in the future.

Keep in mind that was before the O.J. Simpson and other showcase trials, which did little to enhance the public’s view of courts.

More recently, the Conference of Chief Justices at its annual meeting last summer in Cleveland noted that the "apparent remoteness and inaccessibility of courts have contributed to the erosion of public trust and confidence in the judicial system."

A poet has observed that "Reality is what it is, not what we would like it to be." Given all the evidence, it appears obvious to me that we must do more to strengthen citizen trust and confidence in the courts.

Despite what many may have heard, the Futures Commission is studying and discussing a broad spectrum of issues, most aimed directly at building public understanding, trust and access. Some examples of proposals under consideration, include:

The Commission members are now carefully considering the best means for capturing citizen opinions and suggestions on Ohio’s future court system. The goal is to obtain the widest possible range of ideas and reaction. They are looking beyond the traditional public hearings and town meetings. One idea is to convene a day-and-a-half citizen summit that would provide a structure and forum for reviewing and discussing the issues.

The Judicial Conference, of course, has formed a review team to work with the Commission. In addition, it was encouraging to see the response to the Organization Task Force request for suggestions from the judicial branch. As may be expected from such a diverse group there were many and varying ideas, some conflicting with others.

There was one general observation about Ohio’s courts from Judge Earl McGimpsey of Huron County that I thought was particularly well stated: "People in our county take great interest in what goes on in their courts and to a certain extent the cases in their courts help to define the citizens of the county, their foibles and their triumphs. That sense of community can be found in the vast majority of Ohio’s counties and is, I believe, a very important factor in the continuing vitality of our democracy."

Finally, there is one overarching reality upon which rests all of this and all of our ideals about justice.

While visiting at Carrollton High School in Carroll County recently, I was asked by a student if I and other public officials should be held to higher standards of conduct than other citizens.

On its face, it was a perceptive question by an inquisitive student, but it is troubling that the question would even be asked.

Of course, we are and must be held to higher standards. The highest standard by which we are measured is honesty and truth-fulness. If the purpose of our justice system is to structure a search for the truth, the search becomes futile if no one speaks the truth. This is a principle that transcends our constitutional system. It is a principle that dates back to Hebrew law, which specifically forbids lying in a judicial proceeding.

In a recent article in The New York Times, writer Janny Scott observed: "Honesty...is the foundation upon which relationships and many societies are built. Without it...there can be no trust. Widespread lying destroys the fabric of democratic societies, in which the necessary assumption is that people mostly tell the truth."

If we are to imagine a court system that engenders trust and confidence, integrity is not an option. It is the essence. Ruling in a 1995 disciplinary case, the Supreme Court stated: "...The attorney’s duty...is to uphold the legal process and demonstrate respect for the legal system by at all times being truthful with a court and refraining from knowingly making statements of fact or law that are not true."

My concern is not that judges do not understand the obvious. The concern for us all should be that, increasingly, we observe lawyers, witnesses, parties and others who place a low value on being truthful. Each of us has many opportunities to remind, indeed require, that the members of our profession are ultimately responsible for the standards by which justice is pursued in America. There is no more important responsibility. And as we meet that responsibility, we will fully understand Oliver Wendell Holmes’ wonderful description of our profession:

"What a profession the law is ... what other gives such scope to realize the spontaneous energy of one’s soul? In what other does one plunge so deep into the stream of life--to share its passions, its battles, its despair, its triumphs?