Speeches

Chief Justice Thomas J. Moyer
Ohio State Bar Association Annual Meeting
May 17, 2007

President Stith, members of the Board of Governors, members of the bench and bar….thank you for inviting me to appear before you today.

Each time I attend the annual meeting I am reminded of the important work each of you performs for clients, for your communities, for the administration of justice and for the citizens of Ohio.

No other profession directs so much of its energy to promote the general well-being and the advancement of a civilized society.

For that…we should be proud.

I also am reminded each year at this time of the many accomplishments that have been achieved pursuing the mission of the Ohio State Bar Association.

Members of the State Bar have been generous in their response to critical issues that confront the profession and have demonstrated a strong sense of responsibility to lend their expertise and support where it is most needed.

Your work underscores the importance of a shared vision, a vision that draws strength and vitality to our profession.

Jack, your time as president certainly reflects these strengths. Thank you for your advice and counsel and for all you achieved this past year. Your love of the profession is always evident.

And incoming President Ware, I look forward to working with you as you build on the impressive record of State Bar presidents. The challenges of the coming year only will be surpassed by personal satisfaction. Just be prepared for the summer construction season on Interstate 71 as you make all those drives from Cleveland to Columbus.

And to the members of the Committee on Education, and its chair, Rene Rimelspach…thank you for this award.

From my earliest days on the bench I have believed that education—the pursuit of knowledge and critical thinking— are vital to the development of a competent lawyer and indispensable to the creation of an effective citizen.

For our profession, perpetual learning is vital to keeping pace with changes to the law and the growing complexity of the disputes we are called to address. Each new case, each new mediation, each new contract we negotiate brings with it an opportunity to learn.

And for the general public, knowledge about the courts enhances confidence that an impartial judiciary is fulfilling its constitutional responsibility.

An informed citizen, one that knows judges are guided by precedent, a code of conduct, statutes and constitutions, is more accepting of a court decision even if the decision is unpopular.

An informed citizen knows that the courts offer treatment and counseling as a way to slow the revolving door of recidivism.

An informed citizen knows that judges consider trials to be a last resort and that mediation often produces more efficient and effective solutions.

An informed citizen knows that the rights of all citizens are protected each time the rights of one accused are upheld.

The rule of law renews its strength each time a man, woman or child is reminded of the historical role of the courts and the legal profession.

A justice system nourished by knowledgeable citizens benefits greater understanding and our constitutional democracy thrives.

How ironic it is that in the world's greatest democracy, civic education competes for a place in the classroom with a vast array of elective courses; news reporting of significant legal events competes with the vacuous, perseverating about wayward entertainers and sports figures.

Knowledge is power, as Francis Bacon said.

So, during the next few minutes I will share some useful information that you may find helpful in your role as an educator.

I look forward to working with the leaders of the State Bar as you implement the Least Understood Branch to help Ohioans learn about the legal profession. In fact, let me be among the first to volunteer to speak to schools and civic groups.

Many people form their opinion of the courts while serving jury duty. Most walk away with a favorable impression. Yet jury duty provides only a fleeting glimpse of our efforts to ensure that the courts are fair and efficient. Many jurors will never know about the hours that lawyers contribute in pro bono service or that each position in the courtroom is staffed by a person who is experienced and well trained.

Come with me on a quick trip across Ohio to observe the work of lawyers, judges and court personnel.

OHIO JUDICIAL CENTER

The first stop….The Ohio Judicial Center, a 75-year-old state office building transformed into the home of the third branch of state government. The conversion is a product of the appreciation of Ohio history shared by two governors and the leaders of both parties in the General Assembly.

As you approach the building, one of the two sculptures generously donated by the Ohio State Bar Foundation reminds us of the principles of justice. It proclaims that the building is the home of the third branch of state government.

As you walk into the building, you will quickly notice the tour groups – many of them students studying state history and government. Teachers tell us the more than 60 murals in the building depict the story of Ohio history better than any textbook. The Visitor Education Center on the ground floor was designed with the help of civics and government teachers.

If you were in the building last week you most likely saw some of the more than 400 students participating in the Middle School Mock Trial Program organized by the Ohio Center For Law Related Education. They used every conference room on the first and second floor.

When students are not using the conference rooms you will find the rooms being used by one of the 23 appointed committees and task forces at the Supreme Court composed of volunteer attorneys, judges, legislators and citizens from all regions of the state. Nearly all committees have at least one representative from the Ohio State Bar Association.

You will find meetings of the Professionalism Commission…the Commission on the Rules of Practice….or the Board of the Clients' Security Fund…each of them working to assist the Supreme Court fulfill its constitutional responsibilities for the administration of justice.

You may also walk into a meeting of the Ohio Judicial Family Network which is helping spouses and children of judges adjust to the unique pressures of living with a family member who is a judge.

Meeting agendas include discussions on critical issues such as security and ethics.

For me, the most important member of the Judicial Family Network is my wife Mary. No one is more supportive of judicial families than Mary.

It was her vision that initiated the Judicial Family Network in Ohio. She has been supportive of hundreds of families across the state, and she has been my strongest supporter.

Thank you, Mary.

COURT INTERPRETERS

The next stop on our tour is here in Cincinnati …where the broad marble hallways of the Hamilton County Courthouse now echo with languages such as Wolof, Farsi and Punjabi.

Jack Stith, Barbara Howard….as lawyers, you appreciate how the growing diversity of our state creates new challenges for the legal system.

Mike Walton, the Court Administrator for the Hamilton County Common Pleas Court, says it is a “tsunami, an explosion of people coming before the courts who do not speak English.”

The Hamilton County Municipal Court now has a full-time Spanish speaking interpreter on staff…with the full cost of providing interpreter services in Hamilton County Courts rising to more than $235,000 in 2005.

The Supreme Court Advisory Committee on Interpreter Services is developing standards for the testing and certification of court interpreters.

The committee has distributed bench cards, quick reference guides for judges that take a judge through the steps for determining if a party or witness requires a trained interpreter, whether an interpreter has the requisite skills needed in a court setting and how to properly monitor the proceedings.

I commend the Ohio State Bar Foundation for developing material that seeks to explain legal matters to the growing Somali population.

The DVD-based program was developed by the fellows class that included Justice O'Donnell and it seeks to inform Somalis in their native language about their legal rights and responsibilities.

COURT REPORTER CERTIFICATION

The court reporter is one of the most important persons in the courtroom, yet they are required to meet no state minimum standard for skill or performance.

A task force soon will produce minimum standards for certification of court reporters.

Our goal is to ensure that every position in the court system is served by a person who is competent to discharge their responsibility: the judge, the clerk, the administrators, the bailiffs and security personnel.

The Supreme Court now provides advance training to most all positions… often at no charge to the local courts.

ASTAR

In the Putnam County Courthouse, Common Pleas Judge Randall Basinger recently approved a settlement that resolved a dispute among a number of parties regarding the alleged deleterious effects of hydrogen sulfide, a byproduct of manure lagoons, and barns. Neighbors close to a mega farm alleged that the hydrogen sulfide produced neurological harm.

Judge Basinger is one of 20 Ohio judges who have completed 120 hours of advanced training in a wide range of scientific knowledge in medicine, and the bio and life sciences.

One of the courses attended by Judge Basinger was created at the request, and with the assistance of the Ohio Judicial College. The College of Food, Agricultural, and Environmental Sciences, the College of Veterinary Medicine, and The Ohio State University Extension developed and presented the science curriculum for the judges.

Judge Basinger used the information from that seminar to conduct hearings and write opinions with respect to the science presented by the parties to the lawsuit. He was even advised by the lawyers that they were pleased that he had advanced knowledge of the science that was critical to the settlement of the case.

The Advanced Science and Technology Adjudication Resource Center is a national program supported with federal funds and spearheaded by the states of Ohio and Maryland.

The program exposes a selected number of state and federal judges to basic science—the knowledge necessary for judges to understand the science that is increasingly critical to a myriad of legal issues with economic, social and moral consequences. ASTAR gives judges new tools to be used in their role as gatekeepers of the flow of reliable evidence to juries.

In late June, the 20 Ohio judges who have been certified as science resource judges will, with the help of scientists from throughout the country present the fourth Ohio program—a boot camp on the language of life sciences.

But this time, the new class of 15 selected Ohio judges will be joined by judges from 15 other jurisdictions from throughout the country.

More than 80 judges will learn basic science they can expect to see in their courtrooms—Life Genetics 101, Genes and Human Behavior, Risks of Avian Flu, Microbiology, Immunology.

COMPLEX COMMMERCIAL CASE DOCKETS

As citizens of this great state, we all share a concern for the economic realities challenging creators of public policy and creators of jobs.

When making decisions to locate or remain in Ohio, employers assess a number of criteria. Not so obvious, but important to many, is the prospect of civil litigation arising from commercial transactions—costly, time-consuming litigation. A number of states have responded to that reality by creating business or complex commercial dockets in courts of general jurisdiction.

Such dockets are devoted to litigation between businesses, not consumer transactions. Most business-to-business litigation is different from other litigation in the number of documents and witnesses, the extent of the motion practice, discovery disputes, and increasingly, knowledge of technology.

Often such cases benefit from advanced case management techniques and the availability of dispute resolution alternatives.

A concurrent resolution adopted by the West Virginia legislature observed that states with a business court system report that they have successfully used business courts to persuade businesses to locate or remain in those states.

For these reasons, I appointed a task force co-chaired by Judge John Bessey and Pat Fischer, President of the Cincinnati Bar Association, to develop a pilot project for common pleas courts in Ohio.

The project will determine the best means of adopting commercial dockets in some of our common pleas courts.

COURT COSTS AND FILING FEES

The leaders of the General Assembly and I recently appointed our designees to constitute a new Joint Committee to Study Court Costs and Filing Fees.

I am grateful to the General Assembly for creating the joint committee.

Our research reveals 308 references in the Revised Code to the authority of a judge to assess court costs and fines. The addition of a court cost has been viewed as an easy means of funding programs not directly related to the operation of the courts. That practice has produced court costs in a number of counties that exceed the fine assessed by the judge. Many persons pay only the court costs and not the fine.

This joint committee needs to take a hard critical look at the assessment of court costs and fees. With few exceptions, such user fees should be assessed for the operation and maintenance of the courts, and not as a source of revenue for purposes unrelated to the administration of justice.

TECHNOLOGY

There are few, if any developments that have changed our work as dramatically as information technology. Court filings and payments are made on-line and word searches have replaced book indexes as the preferred method for finding an applicable law.

In recent years the Supreme Court launched a newly designed web site, began offering closed-captioning of oral argument broadcasts, implemented new systems for citizens to track individual cases on-line and made case filings available on-line.

These new services join a list of information resources the Supreme Court already provides, including the on-line attorney registration database, on-line access to rulings and opinions, summaries of merit decisions with opinions, and streaming of oral arguments.

We are prepared to take the next step.

The Supreme Court budget now before the General Assembly requests funding for the Ohio Courts Network, a secure, internet-based system that will link the courts and law enforcement community.

The network will identify information that is critical to investigations, dispositions, and sentencing. The goal is to gather specific information to share, and by doing so, enhance and streamline the legal process.

A web portal will allow all Ohio courts to access internet resources, share new application technologies and provide a single point of contact. It will also give justice system partners access to critical court information, and improve public access to appropriate court resources. Technology is not a substitute for judgment. Technology opens the justice system to provide timely, practical information.

SPECIALIZED DOCKETS

The Akron Municipal Court is an important court to visit….not because of its docket of traffic and misdemeanor cases…but because of the people you will meet, the people who participate in the Akron Mental Health Docket, the first of its kind in the state.

The specialized docket was started a few years ago by Judge Elinore Marsh Stormer after she noticed that many of the parties who repeatedly came to court suffered from mental health disorders. Judge Annalisa Stubbs Williams has assumed Judge Stormer's docket. Judge Williams meets each week with parties who have been diagnosed with severe psychological disorders and now receive treatment and prescribed medication.

A study by the Kent State University Department of Sociology concludes that graduates of the program spend far fewer days in jails and area hospitals that those not in the program… saving the state and the community hundreds of thousands of dollars. Some of the graduates now hold jobs and are reunited with their families.

Ohio has 31 courts with mental health dockets, more than a quarter of all the mental health dockets in the country. Ohio is a leader in other specialized dockets, with 75 drug courts.

The success of the mental health docket effort is due in large part to the vision and determination of my colleague, Justice Evelyn Lundberg Stratton, who chairs the Supreme Court Advisory Committee on Mental Illness and the Courts.

CHILDREN, FAMILIES AND THE COURTS

Before I take you to the next courthouse I want to draw in your mind's eye the face of one of our most perplexing challenges: a challenge for both the courts and all of society.

Picture a small child perhaps four, five or six years old.

There is a father and a mother. Things were fine until money got tight and the drinking got out of control. First came the late night shouting, followed by a bruise here and a small cut there. A visit to the emergency room, the parents told the doctors, was the result of a fall down the basement stairs.

The doctors knew better. So did the social workers, and the investigator from Children Services. And yes, the judge knew better too. That's why the judge ordered the child removed from the home and placed in foster care.

That was the response until a few years ago. The child protection system would slow to a crawl as authorities struggled to develop a permanent solution….

either returning the child to the home….or terminating parental rights.

Weeks would turn into months, months into years….as psychological evaluations were delayed and court appearances were missed….either because the parents were not served with the proper notices or the lawyers needed more time to prepare.

Case workers were often overburdened and the lines of communication not always open.If not carefully monitored the entire process could easily take three or four years—three or four years that in the eyes of a six year old is seemingly a lifetime. To say that a child could languish in foster care is not an overstatement.

Now shift your attention to a converted storefront in downtown Marion, an open, well-lighted complex of offices that is now the home of the Marion County Family Court.

It is an inauspicious store front that frames the site of remarkable progress—progress in reducing the time children spend in foster care.

The judges, clerks, and court administrators hold regular meetings with child welfare officials, lawyers and guardians ad litem. They identify problems and develop solutions.

They set goals for themselves and measure their successes and failures. And most importantly, they have produced results. Since 2003, the collaborative approach in Marion County has reduced the time a child spends in a foster home waiting for adoption by more than one thousand, one hundred days.

That's three years a child does not spend in a foster home.

That's three fewer years that the county pays for foster care.

And it is three years sooner a child is living in a safe and supporting permanent home.

Much of the credit is shared by Judge Deborah Alspach and the director of Marion County Children Services, Eric Bush.

Here is one simple idea they implemented: a paralegal for Marion County Children Services now has an office at the Family Court, reducing the time it takes to serve notices on the parties and improving the scheduling of hearings.

The collaboration in Marion County is the out-growth of Beyond the Numbers, an intensive day-and-a-half training program sponsored by the Supreme Court that draws together all the affected parties in a county.

Trained facilitators have already trained personnel in 44 counties.

We have made significant progress, but this example of collaboration does not yet create a statewide pattern.

To help ensure the continued progress, Governor Strickland and I will co-chair the Ohio Summit on Children to be held in Columbus in May 2008.

We will invite five-member teams from each Ohio county…. with the local juvenile court judge and the director of the county children services or jobs and family services board serving as the team leaders for each county.  Each county will be required to submit an action plan within 90 days after the summit. A follow-up conference will be held in 2009 to report on progress made by the counties.

Ten Ohio Courts will soon be selected to participate in a pilot program to test ways to reduce the number of abuse, neglect and dependency cases.

The Ohio General Assembly approved funding for the Alternative Response to Reports on Childhood Abuse Neglect and Dependency…to provide assistance to families with problems such as a school attendance or personal hygiene.

Supporters of the project hope it will reduce the adversarial nature of the current system and encourage parents to seek help before there are legal troubles. If effective, it should reduce court dockets and most importantly, reduce the amount of time children spend in foster care.

MAYOR'S COURTS

One stop on our tour of Ohio courts does not take us to a courthouse.

The General Assembly has assisted the judiciary in the incremental elimination of part-time judges by creating full-time courts from two or more part-time courts. It is now time to address mayor's courts.

Last month, Representative Larry Wolpert introduced House Bill 154.

The bill creates a straightforward restructuring of an outdated system of adjudicating rights and responsibilities.

Only Louisiana and Ohio retain the system. Adoption of House Bill 154 will move Ohio closer to our goal of assuring every person whose rights and responsibilities are adjudicated in a judicial forum that the only concern of the adjudicator is the case before him or her.

Chief Justice William Howard Taft in a 1937 Ohio case, and the Sixth Circuit Court of Appeals more recently, have recognized the inherent conflict of one person serving as an executive of a village and also as the judge who assesses fines that enhance the funds with which the village operates.

It is not enough that a mayor appoints a lawyer to act as a magistrate in mayor's court. House Bill 154 separates the function. It simply provides that the administrative judge of the municipal court of the county in which mayor's courts are established would appoint the magistrate. The result is a community court, conducted at the same convenient location as a mayor's court. But the perception will no longer exist that the adjudicator may be influenced by the village's need for funds.

I urge swift enactment of this legislation.

HOUSE BILL 173

The House Judiciary Committee is expected to soon consider a bill to strengthen the standards for judges and also address concerns about the compensation of judges in Ohio. Representatives Bill Seitz and Todd Book have introduced House Bill 173 which will assist us in attracting to the bench and retaining more highly competent and experienced attorneys.

It increases the number of years a lawyer must be in practice before she or he becomes a judge and provides for some level of education regarding the responsibilities of being a judge before one takes office. It also creates an institutional process for determining the number of judges required to meet changing demands and populations.

The bill also would adopt a system of judicial compensation that will rectify the fact that 30 states compensate their general jurisdiction trial judges at higher rates than Ohio. And Ohio is well behind states of comparable size and diversity. Of the 10 most populous states, Ohio judges are compensated substantially less than judges in the other nine states.

The role of a judge in Ohio — the value to our citizens of highly competent judges — is no different than it is in Michigan, in Pennsylvania, in Indiana, in Illinois, in Florida, Arizona, Arkansas. And yet, a comparison reveals in some instances vast disparities in the compensation of Ohio judges versus the compensation of judges in more than a majority of the states.

One could conclude that the citizens of those states place a higher value on the role of the judge in their community than do the citizens of Ohio. Most of us would not agree with such a conclusion. House Bill 173 presents an opportunity to correct that perception.

As we move about on our tour of the courts some of you may be thinking of the imperfections, the deficiencies, the unfinished work before us.

We assure every person whose life, liberty, or property will be affected by a court decision or court program that we do strive for fairness, impartiality and for the trust and the confidence of our citizens.

In some courts, cases are not managed efficiently. Complaints abound regarding delays in some domestic relations courts. Our case management division provides consulting services to those courts.

Although it is a very tiny percentage of the more than 40,000 lawyers registered to practice in Ohio, the number of lawyers receiving a sanction from the Supreme Court for their conduct is too high.

A mentoring program for new lawyers, required continuing education courses on ethics, adoption of a lawyers' creed, and strong sanctions from the Supreme Court are partial responses.

A related activity to which we are giving increased attention is judicial conduct. A judge's temperament and patterns of conduct may create a perception that the judge is not a person who can be truly fair and impartial.

There are not many of these judges, but their number seems to be increasing. When a judge is sanctioned by the Supreme Court for inappropriate conduct, it is like ringing a bell loudly in a small room. The consequences of the judge's conduct reverberate not just within the bounds of the judge's jurisdiction, but beyond.

Two actions have been initiated to address this issue.

First is the creation of The Judicial Advisory Group whose members are veteran, well-respected judges who are available on request to assist judges reported to have problems.

Through informal contact the Advisory Group of judges attempts to convince the judge that his or her conduct is harmful to the judge and to the court.

In the second development, the Chief Justice and the Ohio Judicial Conference have joined the OSBA leadership in urging local bar associations to conduct voluntary mid-term judicial evaluations.

A judge would be advised during a non-election year of the judge's strong and weak attributes, identified by a survey of members of the local bar association.

The survey results and a follow-up conference with the judge regarding the results would be strictly confidential. Topics surveyed include integrity, temperament, legal knowledge, respect for time demands, preparedness, quality and promptness of written opinions.

The program has proven effective in Columbus, Toledo, and other areas of the state by helping judges to recognize deficiencies and build on positive attributes.

There are two administrative matters pending before the court that maybe of interest.

In February, the American Bar Association House of Delegates adopted substantive additions and revisions to the Model Code of Judicial Conduct.

As I did in response to the ABA adoption of Model Rules of Professional Conduct, I will appoint a task force that will review the Model Code of Judicial Conduct, accept public comment, and recommend to the Court a new Code of Judicial Conduct for Ohio judges.

I am very pleased that Judge Thomas Bryant, retired from the Third District Court of Appeals and a former Chair of the Board of Commissioners on Grievances and Discipline, has agreed to chair the Task Force on the Code of Judicial Conduct. The Task Force will begin its important work just as soon as all members are appointed.

And one final matter, as members of a profession committed to the fair application of the rule of law to every person, we recognize and act upon our responsibility to provide legal services to those who cannot afford them. Judge Learned Hand's admonition that “thou shall not ration justice” was no more important when he uttered the words than the admonition is today.

Many lawyers, we do not know how many, provide legal services to individuals and entities for which they receive no or de minimis compensation.

The Court has received proposals from the Ohio Legal Assistance Foundation, the Ohio State Bar Association, the Metro Bar Presidents, and others that provide the Supreme Court with an opportunity to demonstrate the importance of providing access to the justice system for all who require it.

We will soon take action that responds to the undeniable fact that too many of our citizens in Ohio are not receiving the legal assistance they need.

The concern of the legal profession for Pro Bono service—your concern, as well as mine—sets apart the legal community from most every other profession.

As lawyers we share a concern that justice should not be rationed.

We hold true to the ideal that justice for all includes the less fortunate and those who do not speak the English language.

The legal profession has enduring respect for the rights of citizens, the protections of the Bill of Rights and the fundamental principles of the rule of law.

The founders of our country knew that an independent judicial system, built on fundamental principles of fairness and impartiality would preserve democratic institutions, protect individual rights and ensure a civil society.

Those principles were no more evident—no more important—in 1787 than they are in 2007. We are the beneficiaries of 220 years of the American experience. Of all the lessons of history, none is more enduring than the simple inscription in the Ashland County Courthouse.

There—in gold lettering high above the bench is the self-evident truth—
There Is No Virtue So Great As Justice.