Speeches

Chief Justice Thomas J. Moyer
Cleveland City Club
Jan. 5, 2001

It is an honor to be the first speaker to be invited to the Cleveland City Club in what some regard as the actual new millennium. One thousand years from now, when museum-keepers examine this period of time, they will not note what I say here, but they will come to the "citadel of free speech" to reflect on the events of the 21st century.

For nearly 90 years, the City Club has been a living demonstration of Jeffersonian democracy: a forum for Roosevelts and Kennedys; Reagan and Rhodes; Hoffa and Ness. The City Club is a vital forum for the competition of ideas.

As always, at the end of 2000, the media released its lists of greatest leaders, greatest athletes and, of course, it named the "man of the year." They did us a favor. By looking back they cleared the way for us to look forward.

A crucial responsibility of every public and private institution is planning for the future. The Ohio Courts Futures Commission developed more than sixty recommendations that mark a path into the first quarter of this century. Last year the Commission's 52 members issued their final report that included topics ranging from changes in jury service to the level of assistance offered unrepresented litigants, to qualifications of judges.

One set of recommendations is on its way toward implementation. The Supreme Court Advisory Commission on Technology is developing technology standards directed at improving communication among all courts, reducing costs, increasing efficiency and enhancing access to information for all citizens.

Jurors should be given a more active role. Some Ohio trial courts already allow jury members to take notes and ask questions of witnesses. These are tasks most of us take for granted, but are denied to most jurors. Reforms in states such as New York, California and Arizona indicate that jurors who are more actively engaged in a trial are better able to understand the issues of a case, and produce more informed decisions. These recommendations will be among others to be considered by the Committee to Implement Jury Reform in Ohio.

One of the most perplexing problems identified in the Futures Commission report is how to ensure that all citizens, regardless of income, education or language skills have access to the state courts. Eighty-four percent of the common pleas courts in Ohio report an increase in pro se litigation over the past five years. And 87 percent of the self-representations occur in domestic and family law cases.

We must not turn our back on pro se litigants. The rights to procedural and substantive due process are universal. They are not parsed on the basis of income.

Ensuring fairness also was the task of the Racial Fairness Commission, which presented the court with its final report one year ago. The Commission was chaired by Cleveland Municipal Judge Ronald Adrine, and it found a pervasive perception among minorities that they are not treated fairly by the courts, and that court staffs include few racial minorities. The Commission's conclusion stated: "Platitudes about freedom and equality are not enough; indeed they can become excuses for hidden unfairness. Instead of a leap of faith, what is required is a leap of action to make bold changes to the status quo."

To that end, the Commission recommended a wide range of studies and programs, including the statistical reporting of criminal sentencing, the number of minority court personnel, and the recruitment and retention of minority law students. A task force is working to implement the Commission's recommendations and is expected to submit its final report later this year.

Without waiting for the task force report, the Supreme Court has moved forward to address an issue that will require the assistance of the General Assembly. The retention rate of minority law school students is far lower than that of other students. Therefore, the biennial budget request the Court has submitted to the General Assembly requests more than $800,000 to initiate a program that would provide an intensive six-week program during the summer preceding a student's first year of law school, and some financial assistance during law school. A similar program is highly successful in Indiana.

The Futures Commission, the Racial Fairness Commission, in fact, other court-sponsored programs such as drug courts and dispute resolution have a common thread: to ensure the fair and effective administration of the rule of law. All such efforts are intended to preserve and, indeed, enhance trust and confidence in our courts.

Most courts are meeting that challenge. But we can do better. In particular, we can do better in the way we select judges. Judicial campaigns have become politicized as never before, complete with multi-million dollar media campaigns.

In California, a Superior Court judge accused her opponent of being soft on cop-killers and child molesters. The judge now faces disciplinary charges.

In the Michigan Supreme Court races, one candidate was accused of being racist, while another was labeled as lenient in sentencing sex offenders.

And in Ohio, several million dollars were spent on races for two seats on the Supreme Court. At times the campaigns were mean spirited and misleading. It was a difficult campaign year. We must never experience another like it.

Ohio experienced a type of advertising in judicial campaigns never before seen. Television and radio ads attacked the two incumbent justices, not for the way in which they administer their dockets or perform their work or for personal misconduct, but for their decisions in important cases.

The integrity of the court and judicial independence are threatened when judges are politically attacked for the manner in which they exercise their judgment. The danger is that judgments will become political.

In Tennessee, for example, there has been long-term fallout after a supreme court justice was defeated in a highly politicized retention election. Some time after the election another Tennessee justice resigned after he found himself pondering the political ramifications of his judicial decisions.

The fallout in Florida may have just begun. Some political leaders in that state have organized a campaign to defeat two Florida justices when they run in the next retention election. The group's web page includes information on how to impeach a judge.

Citizens may disagree with a judicial decision. Dissent is part of the American spirit, but to extract political revenge, to threaten the tenure of a judge over a decision with which some may disagree, places the judge in the same political position as a mayor or a legislator.

Remember Adlai Stevenson's definition of democracy is where it is safe to be unpopular.

Many members of the bench and bar have spent years working to reform our judicial election process. Today, judicial campaigns have limits and full disclosure of contributions, a prohibition on judicial candidates using funds raised while holding another political office and a streamlined system to enforce the rules regulating campaign conduct.

We have done as much as any state, and more than most, to place controls on a very imperfect system for selecting judges. I have called on judges, lawyers and other elected leaders to recommit themselves to greater, more lasting reforms.

I have several thoughts. Some relate to action that should be taken immediately, assuming we continue to elect judges in so-called non-partisan elections. First, we should work with legislative leaders to redefine the definition of "advocacy," a possibility suggested in recent federal court opinions. This is necessary if we are to require outside, independent groups to disclose their expenditures and their contributors.

Second, we should explore to the extent technologically possible, the feasibility of requiring instantaneous reporting of campaign contributions.

I recognize that these proposals would only chip at the edge of the problems confronting judicial campaigns. When we examine all the alternatives…incremental change may be all we can accomplish. In my opinion, that is not enough. It is time to fundamentally change the way we select appellate judges in Ohio. We do not have the luxury of being timid. The threats are real and damage has been inflicted.

It has been said that: "Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." That was Roscoe Pound's observation in 1906 when he spoke to the American Bar Association. It was true then; it is true today.

For years, I have supported amending the Ohio Constitution to remove from the open elective process, the judges of our 12 courts of appeals and the justices of the Supreme Court of Ohio. There is no perfect system; there is no system for selecting judges that will guarantee a judge's character and commitment to the principles upon which our democratic justice system is founded. But we can reduce the perception that money and politics matter more than merit and performance.

In the 50 states and the District of Columbia, 30 have successfully adopted an appointive system to select judges. This leaves Ohio in a minority of 21 states that select appellate judges in open elections.

I believe the time is right. It is right not just for lawyers and judges. It is right for all Ohio citizens. At a very basic level they understand that judges should stand apart from common politics--from aggressive fund raising--from attack ads--all of which diminish the perception, if not the reality, of impartiality.

Our next best opportunity to ask voters to adopt true judicial selection reform comes in the general election in November. Any change of this magnitude will require the support of the bar, the bench, the governor, the General Assembly, the political parties and committed civic groups and individuals.

In the closing days of 2000, our nation traveled an unmarked path when it took 36 days to conclude presidential ballot counting. At times it seemed to some that the journey would never end. It was a cynic's dream; but it was not a crisis. It was democracy in its unglamorous splendor.

The experience taught us something about our democracy, renewed our belief in and reliance upon our institutions and, most important, revealed the profound strength of the American character. No one could have wanted the uncertainty; no one could have predicted America's patience. No one could wish that the leader of the executive branch would be determined by decisions of the judicial branch. In another time and in many other places the doubt we have experienced would have dissipated with the presence of military force or violent rebellion. But in America we live by a different standard; we live by the rule of law; the American spirit says the peaceful process by which a leader is selected supersedes all concern for the identity of the leader.

All of our institutions embody our belief in that principal and our trust in each other. And it is that trust in our institutions that enables us to tolerate the inefficiencies of democracy and accept the decisions of those who serve its institutions.

We extend such tolerance because we see ourselves in the reflections of our institutions. We see our strengths. We see our weaknesses. We see our future; it provides hope and confidence.