Speeches

Chief Justice Thomas J. Moyer
Ohio State Bar Association Annual Meeting
May 14, 2009

President Leppla, Officers . . . . brothers, sisters of the Bar, guests . . .

It seems comforting to know you chose this city and this hotel for this year’s annual meeting.  It provides the perfect backdrop for piecing together the events unfolding around us. 

This magnificent hotel has been through more owners, more renovations than any grand hotel has a right to.  Yet here it is.  It has not only survived but remains one of the most elegant hotels for miles around.

Walk out the front door and look to the left.  There’s the Rockefeller Building in its understated beauty…a reminder of an era when oil was king and that kingdom was centered right here…right along Euclid Avenue. 

As you stand outside the hotel…look the other way.  Look to the east.  Casting its morning shadow across the Soldiers and Sailors Monument is the former headquarters of BP Petroleum. 

Both Rockefeller and corporate BP are gone, of course….leaving us only the reminders of our good times and bad.  If the great radio newscaster Paul Harvey was with us today he would remind us that the old landmarks provide us new meaning. 

“In times like these,” Harvey said “it’s always good to remember that there have always been times like these.” 

Our landmarks remind us that people survive economic downturns and depressions….they survive collapses of industries and companies that move out of town.  It’s a reminder amid the mountain of foreclosure filings and the slow but constant parade of bank failures….the growing unemployment numbers…..that we will survive this downturn too. 

And the legal profession—as it has for hundreds of years—will help society pick-up the pieces, restore order and move on to a rewarding future. 

In difficult times, in trying times---people turn to the legal profession---they turn to those who are trained in the virtues that restore balance and equilibrium.  The public seeks us out because we embody the search for truth, for justice….for equality and fairness.

The need for access to justice does not diminish with a decline in the economy.  No.  Our work, your work takes on added significance in days such as these. 

When a citizen feels trapped by fear they consult the professional skilled in the search for stability.

As attorneys, we represent those who are hurt and those who are hurtful, irrespective of their ability to pay.

As attorneys we help the homeowner from becoming homeless.

We help the business owner sort the problems from the possibilities.

In these times the role of the judiciary also takes on added significance. 

In much the same manner that the demand for legal advice and assistance continues unabated during an economic downturn….so too the courts continue to address growing dockets involving mortgage foreclosure and mental illness…. and criminal matters ranging from identity theft to domestic violence. 

These cases do not subside with a decline in tax revenue. 

Jonathan Lippman, the newly-appointed Chief Judge of New York, captured this predicament when he said “…state courts are in the eye of the storm; we have become the emergency room for society’s worst ailments—substance abuse, family violence, mental illness, mortgage foreclosure and so many more.”

In recent years the judiciary has assumed a heightened profile in addressing some of the most critical problems confronting society. 

For instance, thousands of Ohioans have addressed their addictions through the encouragement and treatment of specialized drug dockets…in which the judge and treatment providers provide first-time, non-violent offenders a chance to recover from their addiction. 

The entire program takes place in their home community.   No prison, no lock-up, as long as they abide by the rules of their treatment and maintain their sobriety.  Treatment in a community setting such as this costs 16-hundred dollars per person.  Compare that to the 25-thousand dollars it costs taxpayers to incarcerate that person for a year….and you can see that the program is cost effective.      

In family matters, judges are leading efforts to reduce the painfully long time a child spends in foster care.  One county reduced the time a child spends in foster care by an average of three years….benefiting the development of the child. 

Early placement saves the county and state thousands of dollars each year, but how can we measure the cost-benefit of increasing the probability that a child will grow into a productive, self-supporting adult?   

I somehow doubt when Alexander Hamilton foretold that all of the great issues of society will come before the judiciary, he envisioned the problems to be so vast, so complicated. 

Who could have predicted that last year in Ohio mortgage foreclosure filings would outnumber criminal filings?  Who could have imagined?  Certainly not Hamilton. 

At a conference last week, hosted by the ABA and the National Center for State Courts, on fair and impartial courts, the Director of Commerce joined me on a panel focused on successful collaborative inter-branch responses to current challenges in Ohio.  All appropriate state offices, the Ohio State Bar Association, and non-governmental agencies developed a unified response to the mortgage foreclosure challenge.

The Supreme Court Section on Dispute Resolution developed a model mediation program that could be modified and adopted by any court with jurisdiction over foreclosure matters.  The results were immediate and encouraging.

An elderly woman here in Cuyahoga County, fearful that banks were about to close, drained her accounts…handing her life savings to her granddaughter for safe-keeping.  The granddaughter left town, never to be heard from….forcing the woman into foreclosure. 

Mediation offered by the Cuyahoga County Common Pleas Court allowed the woman to sit across the table from her lender.  Together, they restructured the mortgage terms….allowing the woman to stay in her home.

In less than one year from the initiation of the foreclosure mediation model, courts in all 88 Ohio counties offer foreclosure mediation to anybody who requests it. 

For us as a profession, the most profound chapter in this story of misfortune is written by the 1300 lawyers who answered the call to serve as pro bono attorneys, providing assistance in 942 mortgage foreclosure cases.  They and in-house legal aid attorneys avoided default judgments in 354 cases and kept people in their homes in 271 cases.


COMMERCIAL DOCKETS

At the urging of the Ohio State Bar Association, the Supreme Court sanctioned a case management plan that is new in Ohio but is used successfully in a number of states to say to employers—if you are engaged in a business to business legal dispute, the courts will provide you with an efficient docket, managed by a judge with knowledge of commercial litigation.  Courts in four counties—Lucas, Hamilton, Franklin, and Cuyahoga—are engaged in a pilot project to determine the feasibility of commercial dockets in Ohio.

The case statistics for the first three months of 2009 tell us that the concept is a success.  As Judge Richard McMonagle said, “This is really taking off.” 

In Hamilton County, two judges terminated 51 cases.  In Cuyahoga County, a conference is conducted within days after the filing of a complaint.  Most significant is the steady increase in cases referred to the commercial docket in the first three months—from 4 to 18 in Franklin County and from 4 to 48 in Lucas County.

I firmly believe that commercial dockets will be both an effective case management tool for the courts and will provide the efficiency and predictability necessary for a prosperous business environment.  

The judiciary in Ohio is working on a number of programs and ideas to ensure the efficient use of the public funds appropriated to us. 

The Ohio Courts Network is an example of applied technology that will make the courts more efficient and profoundly enhance discreet access to case histories. 

Here is one example of how it will improve the management of the courts:  After the first few years of drug dockets in Ohio we attempted to study the efficacy of the specialized dockets.  You would think it would be simple.  We had 24 courts with drug dockets…. with 22 different computer systems.  It was impossible to collect the case information necessary for the study.  The Ohio Courts Network will make possible a broad range of reporting and testing mechanisms. 

Its primary benefit will not be so easily measured on a balance sheet.  How do you place a price tag on the ability to have a complete history of the defendant standing before a judge?  An order signed in Lakewood will be immediately accessible in Clermont County.  

297 of our 386 courts now have secure Internet access to case data in 19 courts.  72 courts are in various stages of loading their data.  The goal is to have relevant case data of all courts on the network.


RESPONSE TO ECONOMIC CONDITIONS

When a governor reduces the expenditure authority of state agencies, his order does not affect the judicial branch.  And in Ohio, when the General Assembly adopts the biennial state budget, it defers to the request of the Supreme Court.  But that comity does not absolve the third branch of government from its responsibility to do its part—to take a hard look at our expenditures at the Supreme Court and in appellate and trial courts. 

In the spirit of the Governor’s executive orders, we have reduced Supreme Court expenditures in Fiscal Year 2008 and Fiscal Year 2009 by 5% each year.  We eliminated three positions, and I have substantially reduced the assignment of retired judges. 

We expend over $3 million a year to provide retired assigned judges and active judges to multiple jurisdictions.  Those expenditures have decreased by 10% and will continue to drop.  Several retired judges have volunteered to serve without compensation, and some sitting judges have waived their per diem when presiding in adjoining counties.

A few jurisdictions have developed reciprocal agreements in which judges waive their per diem when serving in adjoining jurisdictions.  Courts in Willoughby, Painesville, Mentor, Licking County, Fairfield County, Parma, and Rocky River have such agreements.

Each court in Ohio prepares and submits its budget to a local funding authority.  No formal process for comparing or providing guidelines for the development of such budgets exists. 

Next month, the Supreme Court will conduct the first survey of the court staff and court budgets of all courts.  Courts will be requested to supply general staffing information and their process for developing and expending the court’s budget. 

The survey will also enable us to compare position categories such as magistrates, law clerks, and court administrators.  The survey should assist all court officials in determining what is a reasonable spending level for their court and should help them make more informed decisions.

We will continue to review our own budget and remind other courts to critically analyze their expenditures in view of diminishing resources.  There must be a balance between the resources dedicated to the judiciary and the resolution of the matters courts are expected and required to resolve. 


I recognize that some county and city funding authorities have challenged courts to accept reduced budgets that could severely inhibit those courts from executing their constitutional responsibility.  Courts across the state have reduced spending, cut staff, and made reductions through temporary furloughs.  Courts are different than public agencies.  We can compromise on budgets, but we cannot compromise on justice. 

Courts must have the resources to expeditiously make the decisions that directly affect the lives of people.  I am urging each of you, as a leader of the Bar and in your community, to lend your expertise developed over years of education and practice to ensure that the courts and the profession in your community retain the respect and confidence of all those we serve.

Stay active in your bar associations. 

Search for ways to promote a better understanding in your community of the role of the courts…a role that cannot be reduced when tax revenues decline.  A very recent survey for the National Center for State Courts revealed that only 34% of the 1200 persons surveyed identified the judiciary as a third branch of government.  We have some work to do.

When an editorial or a letter to the editor unfairly criticizes the judiciary… do what is necessary to correct the record.

LAW AND LEADERSHIP

In a few hours I will join law school deans and the leaders of various legal organizations to announce the expansion of a program designed to create a more racially diverse legal profession. 

The Law and Leadership Institute was tested very successfully last summer in Cleveland and Columbus….37 middle school students of color were introduced to concepts of the legal profession and to the academic rigors that are required of a law school education.

Thanks in large part to a 3.1 million dollar gift from the Ohio State Bar Foundation, the program will be expanded this summer to Toledo, Dayton, Akron and Cincinnati. 

Students are eligible to participate the year following the completion of eighth grade.  Classes are conducted by law students and attorneys who expose the students to various career opportunities for men and women with a law degree.  The goal is to dispel the perception that the legal profession is not open to persons of color—to create a profession that reflects the diversity of Ohio.


In addition to the Bar Foundation I commend the leadership of OSBA, The Ohio Center for Law Related Education and The Kettering Foundation, which has made the valuable contribution of loaning us Maxine Thomas, the Executive Director of the Law and Leadership Institute. 

TASK FORCE TO REVIEW THE OHIO DISCIPLINARY SYSTEM

At this Annual Meeting two years ago, I gave you a hint of my intention to review the procedural structure of the system by which we discipline lawyers and judges. 

Columbus attorney, Samuel Porter, is chairing an 18-member task force that will determine whether the current decentralized process provides the most effective and efficient means of investigating and prosecuting grievances.  Ohio remains alone among the states in not centralizing or regionalizing the investigation and filing of disciplinary complaints.  I believe the Supreme Court has an obligation to be certain that the registration fees paid by all lawyers and judges are expended as efficiently and as effectively as possible.

The recommendations of the Task Force, whether to maintain or change the current system, will be submitted to the Supreme Court by the end of this year.

FULL-TIME COURTS

In 2001, in my message to the General Assembly and many times since, I have called upon the leaders of Ohio to begin a process by which we would achieve the goal of eliminating all part-time courts and mayors’ courts in Ohio.  The goal cannot be achieved in one year or perhaps even five years, but we should be able to say to anyone whose fate is determined in a court in this state that the only interest of the person adjudicating a case in an Ohio court is the fair and impartial resolution of the dispute.  The perception that that is the fact is nearly as important as reality.

So long as mayors of villages serve as judges or appoint magistrates who serve as judges, lawyers serve as acting judges in municipal courts and/or serve part-time in county and municipal courts, the structure of justice will not reflect our total commitment to fairness and impartiality.

Economic constraints often require institutions and entities in the private and the public sector to review their structure and operations.  The obstruction to the elimination of part-time courts created in part by political and personal considerations should be removed during a time in our history when all levels of government are challenged by economic conditions. 

No one can question that the combining of several part-time courts into one court is an economic benefit to those paying for the courts.  Leaders in several counties have already figured this out. 

Marion, Lorain, and Champaign Counties have rearranged jurisdiction of probate, juvenile, and domestic relations courts into family courts. 

Clermont County reduced five part-time courts in three locations to three full-time judges in one location; Columbiana County combined three part-time judgeships in three locations to two full-time judges in one location; Darke County combined two part-time judges into one full-time judgeship; Brown County converted two part-time county courts into one full-time municipal court.

Consolidation of part-time judgeships into full-time judgeships is being considered in Montgomery, Butler, Warren, Mahoning, and Columbiana Counties.  In fact, at the request of Youngstown Mayor Jay Williams in Mahoning County, I have agreed to chair a meeting of all of the interested entities necessary to discuss a more efficient and economical use of judicial resources in Mahoning County.

This piecemeal approach to an undefined goal, together with fiscal realities, should be the catalyst for a legislative plan to an achievable goal.

An important subset of all of this is the continued existence of mayors’ courts in Ohio.  The last session of the General Assembly did not approve legislation that would have provided for the transition of some of the over 300 mayors’ courts to community courts that would become a part of the judiciary. 

The General Assembly has provided that persons serving in mayors’ courts must receive minimum instruction in such issues as due process and must report annually, the status of their dockets. 

Earlier this year, more than 100 mayors’ courts failed to register with the Supreme Court, with no penalty for their failure.  I will ask the General Assembly to give to the Attorney General the authority to take appropriate action against those mayors who do not follow the statute.

Every court in this state should function pursuant to the same Rules of Superintendence.  Every person whose rights and responsibilities are determined by a court should know that the only concern of the person making the decision is the case before them.

At an appropriate time, I will pursue these proposals with the leaders of the General Assembly and the Governor.

In his later years, John D. Rockefeller focused his energies on philanthropy… contributing primarily to higher education, medical research and to improving education in the South.

When he established the Rockefeller Foundation he instructed it “to promote the well-being of the world.” 

Our world is Ohio but our mission is the same:  to promote well-being…the well-being of the citizens who bring us their conflicts, their troubles, their complaints …the well-being of our law schools, our professional organizations and the well-being of the third branch of government. 

We accomplish this by ensuring that all citizens have access to legal representation and access to courts. 

In these difficult times, it is our mission to embody the search for truth, for justice…for equality and fairness.  And I want you to know how honored I am to continue that search with you.