Speeches

Chief Justice Thomas J. Moyer
Speech to the Retail Merchants Association
Nov. 7, 2002

The method by which we select the seven justices privileged to render some of the most important decisions affecting the lives of all Ohioans is an embarrassment to Ohio and an insult to thinking people. Over the past two months, the electorate has been insulted and the judiciary has been injured.

Day after day, hour after hour, we have seen television ads that not only distort the positions of candidates, but distort the very principles of impartiality and independence upon which the American justice system rests.

The candidates and newspaper editorials from across Ohio have robustly criticized the television ads.

This is from the Columbus Dispatch: "Ohio voters deserve high-minded, dignified campaigns for the two contested seats on the Ohio Supreme Court. Instead, they are being doused with sleaze and deception."

A Cleveland Plain Dealer editorial was headlined "Mud-spattered robes," and the Dayton Daily News characterized the ads as junk.

Candidates were outraged. Citizens were outraged. I am outraged. Anybody who places their trust and confidence in a constitutional democracy should be outraged.

We have been subjected to the dark side of democracy; an irresponsible use of the most important element of a true democracy.

The constitutional protections upheld by the courts, especially those articulated by the U.S. Supreme Court, have been turned against the courts. What irony. What hypocrisy.

"Freedom of speech" is not an absolute. It is part of the tension of a constitutional democracy. We know that one may not shout, "Fire!" in a crowded theater or maliciously and falsely accuse another of engaging in criminal activity.

Free speech has been used, not to remind our citizens that the fundamental principles of American justice are independent thought, impartiality, fairness-principles that have served us so well for 220 years.

Free speech has been used to suggest that the role of a court is to favor certain interests. Imagine what it would be like if the right of free speech was extended only to those with whom a judge agrees.

I am extremely dismayed by the involvement of members of the legal profession in sponsoring some of the worst election advertisements in this year's Supreme Court campaigns. Obviously, lawyers have the same first amendment rights as other citizens to express their views on political issues and to support or oppose candidates for public office. But, lawyers are an indispensable piece of the system of justice.

Lawyers have a greater responsibility, indeed an ethical obligation under the Code of Professional Responsibility, to avoid unjust criticisms of judges and candidates for judicial office.

A 1998 American Bar Association report clearly stated the need to promote balance between judicial independence and judicial accountability. I quote from the report:

"Never is there more potential for judicial accountability being distorted and judicial independence being jeopardized than when a judge is campaigned against because of a stand on a single issue or even in a single case."

The report went on to state that lawyers have a special responsibility to "support the judicial process and the rule of law."

Rather than continuing to spend thousands of dollars to assail the records of judicial candidates and the proper role of a judge, lawyers should engage in efforts that further the public's understanding of the judiciary. Ohio has a wealth of programs designed to educate children and adults about the law and judicial system.

Freedom of speech is not free; a high price is paid when interest groups sponsor ads that impugn decisions rendered by judges.

What would happen to sports if referees believed they had to rule in favor of those who paid their salary?

Just as a referee exercises judgment to maintain fair play, a judge is the keeper of society's rules. And yet, some of the most educated and well-informed observers of judges have created well-funded electronic messages that in effect, urge judges not to be independent, not to be fair, not to be impartial.

This is the dark side of democracy.

When an advertisement attacks a judge for a judge's vote on a legal issue, when an advertisement suggests that the election of a certain judge will produce a given decision, the message to the public is that judges are not expected to be impartial. The message to the public is that we should not expect judges to issue decisions based on a careful examination of the facts and the judge's analysis of the law.

The message to the public is that judges should set aside their independence and vote for what the judge believes to be the more popular decision. The message is a direct attack on our courts.

The Ohio justice system is not the playground of clever media spinners.

It can be argued that irresponsible speech is a part of democracy. Since the beginning of our country, men and women have abused the right. Our democracy, and indeed our court system, are vital and strong, and they will survive the deficiencies of human conduct.

That is not an acceptable response. It is not acceptable because unlike the executive and legislative branches, the judicial branch draws its authority from the confidence of the people that courts produce decisions based on fundamental principles equally applied to every individual and entity with whom judges have contact. If that confidence is substantially diminished or destroyed, courts no longer possess the authority that causes citizens to comply with their decisions and orders.

While working with the new leaders of Ukraine from 1992 to 1998, one of their leaders asked me, "What is the size of the police force a court in your state would employ to enforce your judgments?" That question drew into very sharp focus for me one of the most important strengths of the American justice system. The expectation of our citizens is that the process by which disputes and issues are resolved in our country's courts is indeed fair. And so long as that perception lives, court judgments are honored even by those upon whom the burden of compliance falls the heaviest.

Imagine a middle school or a high school student having discussed the creation of the American justice system, or having participated in a mock trial program, going home to TV and watching an ad sponsored by one of the unauthorized campaigns relating to the two positions on the Ohio Supreme Court. Do you think the student would be confused? Do you think the student would wonder whether what he learned in school about the majesty of the law and the constitutional guarantee of impartial courts is more than an academic lesson?

Would the "brilliance of the founding fathers" be challenged, if not diminished by the messages of unauthorized and unaccountable campaign committees?

In a speech a few years ago, I cited a Washington Post survey that found that more than half of the persons surveyed could name the Three Stooges, but could not name a single justice of the U.S. Supreme Court. It is an easy laugh line and it would be humorous…if a well informed citizenry was not indispensable to a vibrant democracy.

A week before Tuesday's election, the League of Women Voters of Ohio released a poll it commissioned. The findings were jarring. 96% of registered voters, that's registered voters, could not name any of the current Ohio Supreme Court justices or the candidates in the election. And it is of little comfort that 47% knew that the justices were elected, because 42% believed the justices are appointed.

The survey also confirmed that citizens are skeptical of the need for judicial candidates to raise campaign funds. 83 percent responded that fund raising has some or a great amount of influence on a judge.

During my time as Chief Justice, I have worked to protect and enhance the integrity of judicial elections:

After the 2000 election for a position on the Ohio Supreme Court, I proposed legislation to require independent groups to fully disclose contributors and expenditures. I also called on the General Assembly to join with the court in creating a Commission on Judicial Selection that would review the processes used in the 50 states for selecting judges of the highest courts and all appellate courts, and recommend changes for Ohio.

I continue to hope and believe that some day the citizens of Ohio will become convinced that changing the process by which we select Supreme Court justices, will create more confidence in the impartiality and independence of the judiciary. My sense is that today there is more interest in pursuing an earnest discussion of that issue than there has been in many years. But that change, if it happens, will take time.

What should be done in the interim? What changes to the current system would enhance the perception that all courts in Ohio serve their critical role in our democracy-that they reflect the fundamental principles from which courts are created?

In May I sent members of the General Assembly proposals to begin the debate.

Ohio could lengthen the term of office for all judges to at least eight years. 55.4 percent of all state court appellate judges serve terms of more than six years. The terms of judges of courts of last resort in 35 states are more than six years.

Longer terms provide the appropriate balance between independence and accountability, reduce the frequency of fund raising and increase the number of qualified potential candidates.

If we were to adopt the American Bar Association Standards on Judicial Qualifications, judicial candidates would submit their qualifications for review by a broad-based panel…assuring the public that judicial candidates have the legal knowledge and temperament to serve as a judge.

I also support raising the statutory minimum qualifications to serve as a judge on a court in Ohio.

A bill before the Ohio House would make contributions to judicial campaigns more transparent….requiring that contributions be reported to the Secretary of State as quickly as technologically possible.

The Constitution of Delaware requires that the Delaware Supreme Court have a majority of no more than one from the major political parties. Some suggest one nonrenewable term of 12 or 14 years.

Senator Voinovich, you have expressed interest in improving the selection process. If Congress extended franking privileges to judicial voter guides….that would eliminate one-third of the production and distribution costs.

Congress or the General Assembly may want to consider legislation that would shed more light on the contributors of unauthorized campaigns. 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.

This is a collection of ideas gathered from various sources throughout the country. They are offered as a catalyst to begin the process of change. Others should be encouraged to offer and discuss their proposals.

Early in January I will host, with others, a one day forum at which invited participants, representing various interests, will be given the opportunity to think anew…to discuss existing proposals or develop new alternatives. There is no preconceived outcome other than improving on our method of selecting judges.

In all history, only the democracies have been created from an exercise of mankind's highest intellect and sense of humanity. Indispensable to every democracy is the robust, vigorous flow of ideas that produce actions intended to benefit the common good of society---the whole of the community.

The human mind is never more productive, never more beautiful than when it is engaged in that activity. And every one of us has benefited from our right to engage in the process. But democracies demand a great deal of the participants. They require educated, informed, engaged citizens.

Today, in Ohio, one of the institutions of our democracy desperately needs the very best from informed, engaged citizens. The call is that we shine a light into the darkness; that we do what Ohioans have done for nearly 200 years; that we apply our spirit and creativity to an issue for which there are solutions.

Ohio is a great state. We gave America electricity, flight, explorers in space, the McGuffey Reader, justices of the United States Supreme Court and eight presidents. We now have an opportunity to create a new system of justice inspired by the oldest of principles, and to assume our historic role of leading the nation in the advancement of enlightened human conduct.