Speeches

Chief Justice Thomas J. Moyer
Ohio State Bar Association Annual Meeting
May 12, 2005

A century and a quarter ago, Ohio was the home of ambition, the birthplace of drive and determination that built a nation. Ohioans were go-getters, “who found oil in rocks and brought light to millions.”

In 1880 our ancestors dug the coal, shaped the steel and in the case of John D. Rockefeller, cornered the market as the nation pushed out to the Western frontier.

Our ambition also was evident in civic affairs. In 1880, three Ohioans served on the US Supreme Court, including Chief Justice Morrison Waite. At the White House, Rutherford B. Hayes prepared to pass leadership of the country to another native son, James Garfield.

This broad reach, this determination, inspired about 400 attorneys to gather in Cleveland 125 years ago for the first meeting of the Ohio State Bar Association.

The statement of purpose approved by the newly organized bar reads as follows:

“The association is formed to advance the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to uphold integrity, honor and courtesy in the legal profession, to encourage thorough liberal legal education and to cultivate cordial intercourse among the members of the bar.”

The annual membership fee was two dollars.

For all these many years, the Ohio State Bar Association has been an indispensable partner in the administration of justice. Members of the bar drafted a constitution and adopted laws…and every institution has benefited from the advice of an attorney.

In times of need, it is the well-trained lawyer who steps into the breach.

William Howard Taft would have been a successful Cincinnati attorney if he had not answered the civic calling that led him to the Philippines , the White House and the US Supreme Court.

Newton D. Baker set aside his private practice for government service, leading the War Department during the “War to End All Wars.”

And in the early moments of women's suffrage, Florence Allen stepped over many barriers to become the country's first woman trial judge, Supreme Court justice and judge of the US Court of Appeals.

Our history as a profession is marked by an unending search for justice, a constant scan of the horizon for methods that will ensure citizens have access to legal services and courts that are fair and efficient.

In 1912, that search resulted in amendments to the Ohio constitution that altered the structure of the courts. In 1968, it produced the Modern Courts Amendment.

In more recent years, our common pursuit has led to a broad range of programs that provide citizens with new, less adversarial means of resolving their legal disputes. Substance abuse and mental health dockets have diminished the cycle of crime that fills our jails.

But all of this is prologue. Today we build on these accomplishments, “What actions are required to meet our responsibility for improving the security of court buildings and citizen confidence in court decisions?”

I will talk about goals and programs that address our aspirations for the legal profession and the judiciary. Taken together, these efforts say to Ohio citizens that each courthouse position is staffed by someone who has the appropriate skills and meets minimum professional standards.

Court Security

1. Everyone who enters a court building should believe they are in a safe and secure place. But events of the past few years peeled away that sense of security…making it critical for all courts to revisit security procedures.

In 1996 the General Assembly provided funding to enable every court in Ohio to purchase security equipment for the screening of all who enter a court building. We know that in many counties funds are not available to operate the equipment. That deficiency must be rectified. The National Center for State Courts is working with members of Congress who have become sensitive to the need for broader funding.

Justice O'Connor has agreed to chair The Advisory Committee on Security and Emergency Preparedness. As the former director of the Ohio Department of Public Safety, Justice O'Connor coordinated state efforts on homeland security.

Building on the earlier work of Justice Stratton, the committee will identify best practices from Ohio and across the nation that will be used to set the parameters for local courts as they update their security standards. Our goal is to make the security standards comprehensive … incorporating the experience and practices of all agencies that contribute to court security.

The Supreme Court will also develop the means for the electronic collection of court security data from local courts, providing both a local and a statewide context for security issues.

We are working with the Ohio Peace Officers Training Academy to design a new training program specifically for court security officers, and our professional security personnel continue to provide on-site consultations to any court requesting their services.

Taken together, these efforts place Ohio at the forefront of responding to the realities of the age in which we live.

Court Interpreters

2. Over the past three years we have witnessed at least a two hundred percent increase in the number of cases requiring language or visual interpreters. Family members or friends are often called into service, interpreting without the specialized knowledge required in a court proceeding. Even janitors have served as court interpreters.

Responding to a recommendation of the Commission on Racial Fairness and the Racial Fairness Implementation Task Force, Supreme Court staff, assisted by a new advisory committee chaired by Judge Ronald Adrine, will develop minimum standards and a certification test for all courtroom interpreters.

Guardians Ad Litem

3. In the fall, our Office of Court Services will expand training opportunities for lawyers who serve as guardians ad litem.

Coursework will focus on child development, communicating with children and other issues not typically taught in law school.

The Supreme Court Task Force on Guardian Ad Litem Standards concluded that training will increase the number of guardians with skills responsive to the increasing demands of cases involving children.

The training will be administered by the Ohio Network of Children's Advocacy Centers, which has agreed to train up to 1,200 attorneys a year.

We have not yet required that every guardian ad litem receive training for minimum standards. To achieve our goal the day must come when such a requirement is adopted.

Task Force on Pro Se and Indigent Litigants

4. All lawyers have an obligation to provide “justice for all” by assisting those who can least afford our services. A recent survey of 600 Ohio attorneys revealed that 62% of the respondents found pro bono work to be personally and professionally satisfying.

A similar percentage of respondents said attorneys have a professional obligation to share their legal talents or resources with those who would not otherwise have access to the legal system.

Chair of the Task Force, Judge John Adkins, has promised recommendations for pragmatic, long-term solutions that will enable every party in a courtroom to be represented by counsel.

Ethical and Professional Standards

5. A certificate of admission to the Bar of Ohio is a minimum requirement to practice law. We require much more. Every lawyer and judge is required to continue their education. We are required to live by written codes of conduct and professional standards. We impose special education and practice requirements on those specializing in discreet areas of the law.

The very important work of the Task Force on Professional Conduct, chaired by Judge Peggy Bryant, will soon be completed and the Court will consider adopting the American Bar Association Model Rules of Professional Conduct.

The Task Force will recommend strengthening certain client protections, such as requiring more comprehensive written fee agreements, improved record keeping, and better communication between lawyer and client.

The proposals will also recognize changes in multi-jurisdictional practice.

When adopted, Ohio will finally join virtually all states in using the Model Rules as a basis for its lawyer code of conduct.

Professionalism

6. The restructured Commission on Professionalism is providing a more significant role for bar associations and law schools in determining standards and new programs. It is our hope that the Commission will be more effective by placing decision-making authority closer to those most affected.

The Court has hired a full-time secretary, Denise Lacey, to staff the Commission on Professionalism, making Ohio one of the few states that has such a position.

At a two-day retreat next month, the Commission will begin to develop the parameters of a statewide mentoring program designed to guide recently admitted lawyers through the challenges of real life. Justice O'Donnell has been the inspiration for this new program.

It is part of an effort by the Court and the Bar to provide not only practical advice to new attorneys but also one-on-one relationships as new lawyers confront the pressures of long hours and constant deadlines. Mentoring programs developed by the Columbus Bar Association and the Supreme Court of Georgia will guide the Commission's work.

Court Reporter Certification

7. Among the most important persons in a courtroom is the court reporter, performing a vital service to the creation and preservation of a record of proceedings. Yet court reporters are required to meet no minimum standard of skill or performance. At the request of the Ohio Court Reporters Association, we have begun discussions that will produce minimum standards and certification for court reporters.

Qualification of Judges

8. There is in both houses of the General Assembly a growing sentiment for legislation that would increase the years in practice requirement for judges of the trial courts, courts of appeals and the Supreme Court, and a requirement that a lawyer seeking his or her initial election to a court be required to complete a comprehensive pre-filing education requirement.

Mediation—Rule 16

9. Mediators will be subject to new training requirements when the court adopts amendments to Superintendence Rule 16 which are now posted for public comment. In addition to making the rules consistent with the Uniform Mediation Act, the amendments increase the hours of training for mediators who engage in family and domestic mediations, with an emphasis on screening for domestic violence.

The proposal also sets forth procedures for court mediation programs and requires that local rules contain procedures that address attorney participation.

All of these activities are directed at a goal. The goal is, to assure everyone who has business in our courts, that those who will directly affect their lives have met minimum standards of training and performance.

10. There are two structural changes that are long overdue in Ohio . We must attend to them with determination if we are to meet our goal.

In my State of the Judiciary speech to the Ohio General Assembly in 2001, I called upon the General Assembly to require that all courts in Ohio be served by full-time judges. No such legislation was adopted, but in the ensuing years the General Assembly has created courts with full-time judges by combining several courts with part-time judges at the request of local officials.

Judge Tom Zachman, who served more than a dozen years as a part-time judge in Brown County, is one of its most vocal opponents.

Judge Zachman wrote this, “Permitting judges to be part-time and also practice law is unsound in theory, unstable in practice, and a real and present danger to the independence of the judiciary.”

We should not wonder that citizens may doubt the impartiality of a system that permits a lawyer to serve as a judge on Monday and on Tuesday negotiate a settlement for a client with an attorney who appeared before him on Monday.

In nearly half of the counties in Ohio, the system of part-time judging blurs the bright line of impartiality. The elimination of part-time judges was recommended by the Ohio Courts Futures Commission and by the Ohio State Bar Association. I hope I can count on your support today.

Mayor's Courts

11. Louisiana and Ohio share a dubious distinction. They are the only two states that continue to permit one person to serve as executive and as judge in the same city.

The Sixth Circuit Court of Appeals recognized the inherent conflict in a system that permits the person responsible for the fiscal well being of a community to use judicial powers to produce income that supports the well being. Some argue that the employment of magistrates by mayors is a complete response to the constitutional defect. Can we really be convinced of that?

On April 26 th the justices of the Supreme Court voted to express their support for a process that will create an orderly, deliberate transition by which mayor's courts and part-time judge positions would be eliminated in Ohio.

Let Louisiana stand alone.

As important as these goals may be, they are far surpassed by a challenge to all American citizens.

Before I leave, I would like to tell you about Oleksandr Potylchak, a judge on the Supreme Court of Ukraine. On December 3 rd last year, Oleksandr and his wife kept their children home from school as they would for several days. They wanted them to be safe.

Oleksandr was on the panel of the Ukraine Supreme Court that invalidated the fraudulent election for the successor to President Kuchma.

The President of Russia, the President of Ukraine and many members of the Rada of Ukraine disapproved of the Supreme Court's involvement in the election. But Oleksandr and a number of his colleagues rendered a decision pursuant to the Constitution of Ukraine, that was hailed throughout the world as a courageous demonstration of judicial independence.

We do not know which of Oleksandr's colleagues voted with him because in Ukraine such information is not publicly disclosed. In March this year, Oleksandr visited us in Ohio.

He was part of an eight-member delegation that came to study and learn more about American jurisprudence and constitutional democracy. He had more to teach than to learn.

In our discussions with Oleksandr and his colleagues, we learned several important facts:

Many citizens of Ukraine did not believe the Court would risk rendering an independent decision---one that essentially overturned the goal of a sitting government.

Despite fears of retribution, the judges of the Supreme Court of Ukraine rendered a decision consistent with the facts and the law.

Judges on trial courts and appellate courts in Ukraine told us they now feel a greater sense of independence, of impartiality—a sense that the constitution takes precedence over political dictates.

When Oleksandr left the United States , he understood better the fundamental principles upon which the American system of justice has rested for 225 years. And we had a keener understanding of an application of those principles in a country in which we had worked to instill them.

I hope I will see Oleksandr again. I believe I will. I would not be surprised if Oleksandr has some questions for me. But I am not certain how I will answer them.

He may say to me, “There appear to be persons in America —persons in high public office—who are saying things that do not reflect the principles of impartiality and independence for which your justice system stands as a model in the world.

“They seem to be saying that a legislative body should be able to direct a court decision. They seem to be saying that if certain persons or groups do not approve a judicial decision, that a judge should be concerned for his or her position as a judge. Is it true? Is it true that some have implied that decisions of judges can cause judges to be physically attacked?”

What should I say to Oleksandr? What would you say? I would like to tell Oleksandr that the shrill voices are misguided; that their corrosive sentiments attack the fundamental principles of our constitutional democracy.

I would like to tell him that the judicial branch of government in America has withstood criticism and the consequences of imperfect or controversial decisions in the past. And I would like to tell Oleksandr that most American citizens who understand history and revere civility want their country to always be a nation led by those whose dedication to its institutions subdues their desire for political gain or personal popularity.

And finally, I would tell Oleksandr that the struggle to preserve a judiciary free from inappropriate interventions will in the future—as it has in the past—be led by lawyers.

So I ask you to help me answer Oleksandr's questions—not for him, but for us.

With the inspiration of Oleksandr and judges like him throughout the world; with a rekindled spirit, with active commitment by word and by deed of lawyers like you, the American justice system will hold its place in the world as a model of independence, impartiality and fairness.