Speeches

Chief Justice Thomas J. Moyer
Ohio State Bar Association
May 9, 2001

President Jackson, President-elect Trapp, thank you for inviting me once again to address members of the Ohio State Bar Association.

This talk will be brief because I have decided to do something different today: I will take your questions.

This past year has been productive, thanks in part to the support and assistance offered by the State Bar Association.

The Bench-Bar Conference on Judicial Selection was both timely and productive.

The review by the bar of the recommendations of the Ohio Courts Futures Commission will assist the courts as we look forward to the next quarter century.

Representatives of the Bar are members of committees:

In the near future the court will call on the Bar to provide representation on a committee that will develop practical methods for reducing our reliance on part-time judges who sometimes appear in courtrooms as both judges and as lawyers. Judge Tom Zachman is a very important proponent of the change.

The collaborative work between the courts and the bar is not a feature I take for granted. Not all state bar associations and Supreme Courts enjoy the productive relationship that exists in Ohio.

Some of you have seen reports that the Ohio House has voted to reduce the budget request for the next biennium for the judiciary and the Supreme Court.

The four percent reduction is in line with funding cuts for the other state offices, but it is the first time in anyone's memory that the General Assembly has reduced a budget request from the courts.

The judicial branch constitutes one half of one percent of the state budget.

Because nearly seventy-five percent of the budget is the salaries of common pleas judges and appellate court judges and staff, the court may be forced to cut spending for programs such as technology and mediation.

It is our hope that the reductions will have minimal affect on programs, but it would likely push back the timetable for such efforts as the Juvenile Data Network and other technological updates.

But more than 657,000 dollars remains in the state budget for the Council on Legal Educational Opportunity. (CLEO) is a new program that will assist disadvantaged and minority students be successful in law school.

I would like to take a few moments to discuss an issue of urgent importance.

Reg Jackson joined with me last December in attending the National Summit on Improving Judicial Selection, a meeting of judicial, legislative and civic leaders from the 17 largest states that elect at least some of their judges.

The Chicago Summit produced a broad consensus that judicial campaigns are becoming more like races for legislative and executive offices, with multi-million dollar campaigns, and interest groups campaigning for the judicial candidates.

Justice Diane Sykes, of the Supreme Court of Wisconsin, has said "that if this trend continues we will end up with a bench with a legislative mindset."

I am not alone in calling for judicial selection reform. Chief Justices in Michigan, Mississippi and Texas have called for the removal of politics and campaign contributions from the process of selecting judges.

The North Carolina Senate last month approved a constitutional amendment that would establish an appointive system of judicial selection.

In his state of the state address, Governor Tom Ridge called for similar action in Pennsylvania. In supporting the proposal of Governor Ridge, the Pittsburgh Post Gazette noted that electing judges is not an essential aspect of democracy.

The editorial concluded:

If democracy is not dishonored by an appointive federal bench…
and it is not…it will survive the same system at the state level.

Ohioans must now ask themselves if we are prepared to make decisions fundamental to our future; decisions that will determine the quality of justice in Ohio for years to come.

We must answer the question: how important is it to the citizens of Ohio that the judges of our courts are principled persons of the highest character, stewards of an institution that is and is believed to be, dedicated in all its actions to the immutable principles of justice?

Perfection is elusive but it is a worthy goal.

My support for adopting an appointive system for appellate and Supreme Court judges is well known, and predates by many years the election contests of last year.

In my conversations with labor leaders, political party leaders, organizations, the Governor and leadership of the General Assembly, I have found a willingness to engage in a process to determine whether the various interests can reach some agreement for change.

Leaders of the General Assembly have committed to create a Commission on Judicial Selection and Qualifications that would report its recommendations by early 2002.

The Commission will include representatives of the General Assembly, designees of the Governor and the Chief Justice, labor, the business community, interested civic organizations and the organized Bar.

And, of course, it must be bipartisan and should reflect the diversity of our state.

There are a wide variety of judicial selection methods adopted in other states that should be considered by Ohio.

In the 50 states and the District of Columbia, 30 have successfully adopted an appointive system to select judges. Twenty-one states, including Ohio, select appellate judges in regular elections: some partisan, others nonpartisan.

Some states have nominating panels, which submit recommendations to the governor.

Some governors make the choice on their own while in others the state senate confirms. In Virginia, the legislature has sole authority to appoint both appellate and trial court judges.

Seventeen states that appoint require judges to face voter approval in retention elections after serving on the bench for a length of time.

There are measures that can be taken regardless of whether Ohio retains the current elective system for selecting judges.

State Representative Ann Womer-Benjamin has introduced legislation that would increase the reporting requirements of contributions to judicial campaigns.

The bill would require that as of September first of a judicial election year, any contribution of more than $200 to a campaign for a candidate for a court of appeals or Supreme Court be electronically reported to the Secretary of State within two business days of receipt by a campaign treasurer.

The current requirement for Supreme Court campaigns is $500 beginning 19 days before an election.

Legislative language is being drafted for a bill that would define "advocacy" for purposes of determining whether contributors to so-called independent campaigns must be reported.

Recent federal court opinions have suggested that it is the content and purpose of the message of a political advertisement that should control the determination of whether the advertisement is express or issue advocacy.

Every person who contributes to a campaign to elect or defeat a candidate should be publicly identified.

The Call to Action developed at the National Summit on Improving Judicial Selection contains other topics for consideration, including public funding for judicial campaigns, and the establishment of non-governmental monitoring to encourage fair and ethical judicial campaigns.

Changing the method of selection is one goal. The other is the adoption of changes in the qualifications and evaluation of judges.

Ohio may wish to implement the recommendations developed by the ABA Commission on State Judicial Selection Standards, of which I was member.

Adoption of standards would achieve two objectives: the establishment of rigorous and well-defined qualifications for judicial officeholders, and the creation of a diverse, nonpolitical panel that would make recommendations to the governor in the event of a judicial vacancy.

The qualifications component mirrors a recommendation of the Futures Commission to establish a permanent judicial qualifications commission.

That commission would establish minimum qualifications and determine whether nominees and candidates meet the criteria.

The commission as envisioned would transcend political partisanship and be geographically and demographically reflective of the state population.

The guiding principals of any change must be that the judiciary meet the highest expectations of citizens, and result in a judiciary that is perceived to be fair and effective.

Nominating and qualification commissions will not guarantee ideal temperament and superior knowledge. But a system that is inclusive, one with stringent standards that are transparent to outside observers will not only benefit judges and citizens, it will benefit the rule of law.

It is time for lawyers, lawyers organizations, judges and others to ask not "what is the best system for me," but to ask "what can I do to help create a system of judicial selection that reflects the fundamental principles of justice."

To paraphrase James Madison,

The problem to be solved, is not what form is perfect, but which of the forms is least imperfect.

Thank you for the opportunity to speak with you today, and I will be pleased to answer your questions.