Speeches

Chief Justice Maureen O'Connor
Akron Commerce Club
March 5, 2014

Thank you Terry (Metcalf, executive vice president of the Northeast Ohio Auto Dealers Association) for that introduction and for the invitation to speak before the Commerce Club.

While you didn’t specify a topic, I would like to take this opportunity to speak about judicial election reform in Ohio.

I am focused on this initiative in part because of the recent historic turnover – 56 judges retired over the last two years (42 in 2012 and 14 in 2013) – and the coming change within the judiciary.

Within the next six years, we estimate that nearly 100 judges will reach the retirement age and be prevented from serving another term.  And that doesn’t take into consideration judges who may retire before the mandatory age limit for other reasons.

As we witness historic numbers of vacancies occurring, it illustrates clearly how important it is that Ohio has the best system possible for selecting judges.

That’s one of the reasons why I announced in May “Ohio Courts 2013,” an eight-point plan to strengthen judicial elections in Ohio, to empower Ohio voters, and to support the highest quality judiciary possible.

The plan identifies a series of issues and poses questions surrounding specific potential reforms for the public’s consideration.

I unveiled the plan during a speech to the Ohio State Bar Association. Since then, I have been discussing it around the state at gatherings large and small, from statewide conferences to noon Rotary meetings.

Today, I would like to report on where we are with this initiative, to encourage you to participate as we move forward, and to share with you some of the feedback that has come in on the plan.

I have said it many times and repeat it to you today: Ohio has one of the best judiciaries anywhere in the country and in the world, and that’s because of the men and women serving on the bench. But the turnover underscores that current judges will not always be here and raises the question: Do we have the best possible system for selecting who will serve on the bench?

I have concluded that we can do better. Why you might ask? Because polls show that even though Ohioans want to continue to elect judges they believe that judges are influenced by politics, by contributions, and by other factors.

My plan starts with recognizing that Ohioans want their judges to be elected, then examines eight ways that we might improve judicial selection.

  1. Should Judicial Contests Always Be at the End of the Ballot?
    • Ohio election law places judicial contests at the end of the ballot. Placing judges at the end of the ballot sends a message that judges are less important. Multiple studies demonstrate that ballot order matters.
    • Candidates listed first get more voter participation.
    • Contests and issues listed first get more voter participation.
    • In recognition of this well-documented phenomenon, Ohio law already mandates that candidates’ names be randomized.
    • Should a similar approach be applied to the order of contests? Judicial contests come at the end of the ballot, and one quarter of the voters don’t participate in these contests. Coincidence ... I don’t think so. They have a name for this phenomenon ... ballot fatigue. Not only is this phenomenon in Ohio, it’s present all across the country.
    • But, frankly, instituting a ballot order change is not the best way to have voters focus on and vote for the judiciary.
  2. Should All Judicial Elections Be Held During Odd Years?
    • As an alternative or possibly in conjunction with the first idea, what if elections for the Supreme Court, appellate courts, common pleas courts, and county courts were held in odd years, like those of municipal elections?
    • During presidential and mid-term elections, races for the judiciary get lost in the shuffle. The judiciary competes for attention with partisan candidates for president, senator, congress, governor and others who are able to shout their messages while we as judicial candidates are only able to whisper.
    • Would separate, dedicated elections for all judgeships receive the attention an independent branch of government deserves?
    • Would voters benefit by knowing that all judges are on the ballot at the same time instead of some during even years and some during odd years?
    • Enacting this change would require amending the Ohio Constitution, specifically Article XVII, Section 1 that provides:
      Elections for state and county officers shall be held ... in even numbered years; and all elections for all other elective officers shall be held ... in the odd numbered years.
  3. Should Ohio Centralize & Expand Its Civic Education Programming and Institute a Judicial Voter Guide?
    • Studies routinely show that citizens’ knowledge of the judicial system is inadequate, and voter participation and engagement in judicial elections is less than in the elections for the other two branches.
    • People often say I don’t vote for judges because I don’t know who the candidates are or I vote because of a familiar name or I follow a slate card.
    • This can be partially remedied by moving the elections to allow for greater showcasing of the judiciary and the judicial candidates and having more resources for voters to learn about the candidates.
    • Should there be a statewide, Web-based repository for judicial candidate information and a formal body for conducting judicial debates? That would be a great start.
    • You know, we have four weeks to vote in this state. There’s plenty of time for citizens to research judicial candidates and that could start with a central repository of uniform information about each candidate on the ballot.
    • Most voters spend more time binge watching their favorite show then investing time to find out more about candidates who are on the ballot. The program I’m proposing could be a boon to citizens gaining knowledge about the candidates and then feeling empowered to vote.
    • Another important public education idea involves the use of cameras. Should the use of cameras in the courtroom in Ohio be expanded?
    • Some local courts – such as South Euclid – live stream their municipal court proceedings. What a great way to offer a learning experience for the voters. The end result is they see our courts in action and have real knowledge of our system.
    • The state Supreme Court has successfully utilized cameras in its courtroom for more than 10 years, and there is evidence to support the idea that more transparent courts result in more public confidence in the judiciary. We also recently expanded cameras to now include Court of Claims proceedings in a pilot project.
  4. Should Ohio Remain the Only State in the Union that Holds Partisan Primaries Followed by Non-Partisan General Elections for Judges?
    • This might be one of the most controversial questions that I’ve put out there for public discussion.
    • Twenty two states elect their judges in competitive elections. Seven hold elections where candidates’ party affiliation appears on the primary and general election ballots.
    • Fourteen have non-partisan elections where the party affiliation does not ever appear on the ballot.
    • Ohio is the only state that holds overtly partisan primaries with ostensibly nonpartisan general elections.
    • Should party affiliations have any bearing on races for an office that requires absolute impartiality?
    • I believe that it is time for Ohio to join the other states that have abandoned party affiliation in judicial elections altogether.
    • Some scholars and other observers have argued that party affiliation is a valuable cue for voters, particularly in low-information races like judicial races. The counter to that would be increase the information available about the candidates for the judiciary. I also argue that the party affiliation, the party label, is a miscue and perpetuates the belief that politics matter in how a judge does his or her job.
    • Ohio’s primary/general election dichotomy also leaves out a wide swath of voters: independents. They can’t participate in the process at the primary stage, yet they are the ones making the decision in November.
  5. Should Ohio Join the Other States that Have a Formal, Non-Partisan System for Recommending Nominees to the Governor to Fill Judicial Vacancies?
    • When you consider that more than half of Ohio’s judges first take the bench by appointment to fill a vacancy rather than through an election, this is really an important question.
    • Thirty-six states have some type of formal system to bring together citizens from diverse backgrounds to carefully consider candidates for judicial office.
    • Ohio has experimented with nominating commissions with varying degrees of success in the past.
    • The larger issue at work here is direct accountability to voters especially when you consider the significant number of judges who run unopposed in elections.
    • In fact, in last November’s general election for municipal court, only 16 of 77 judgeships were contested.
  6. Should Appointments to the Ohio Supreme Court Require the Advice and Consent of the Ohio Senate?
    • In the federal system and in a handful of states, judicial appointments by the chief executive must be confirmed by the Senate.
    • In fact, in Ohio from 1803 until 1851, the legislature was the sole body that appointed judges.
    • Given the volume of appointments that are made each year, it might be impractical to have this requirement for all judicial appointments.
    • But, what about for the highest court in the state, the body that also exercises superintendence authority over the entire state system? Should the Ohio Senate have the authority to approve appointments to the Ohio Supreme Court?
    • Giving the Senate this authority would require a constitutional amendment and adding language to that effect.
    • This system could work effectively with the proper structure.
    • The criticism is of course that we don’t want to duplicate the experience of the federal system, which has had its problems.
    • To that I say: Shame on us in Ohio if we can’t devise a better system than what is being used in Washington. We can also look at the systems other states have developed too.
  7. Should Ohio Increase the Basic Qualifications for Serving as a Judge?
    • Another recommendation over the years has been to increase the number of years of practice necessary to run for or be appointed to a judgeship.
    • Currently, an attorney needs only six years experience before assuming the bench.
    • Across the United States there are varying requirements for legal credentials.
    • Three recent legislative proposals would have implemented longer years of practice requirements for the common pleas bench (8 years), the appellate bench (10 years), and Supreme Court Justices (12 years), although some argue that trial judges need more experience than appellate judges.
    • Should Ohio increase the number of years of experience required before serving on the bench?
  8. Finally, Should Ohio Increase the Length of Judges’ Terms?
    • This question is also one of the more controversial ideas.
    • This reform recommendation seeks to promote judicial independence while ensuring continued accountability to the public.
    • Currently Ohio judges are elected to six year terms. Suggested reforms would keep municipal and county judges terms at this length but increase them for other courts up to 12 year terms for Justices. These numbers are not written in stone, they are not magic numbers. They can be viewed as a starting point.
    • Would lengthening judges’ terms be an improvement that would still hold judges directly accountable to the voters but allow them to spend more time concentrating on their jobs and less time campaigning?
    • The less frequently a judge runs and has to act like a politician by raising money, the more confidence the public will have in the judiciary.

Please let me emphasize again that each part of the plan is phrased in a question.

I don’t claim to have answers to all these questions. I submit it for public consideration and have established a process for bringing people together to reach consensus on judicial reforms.

One area that is not addressed is campaign finance reform. Currently every donor to a judicial campaign is limited as to the amount that can be given. The limits are set by the Supreme Court and are deemed to be reasonable. As long as a candidate and a donor do not violate the limits there is an opportunity for a level playing field.

The tricky part is the influx of third party money. This money is unrelated to the candidate’s campaign and in fact cannot have coordination with the candidate. As long as U.S. Supreme Court opinions such as Valleho and Citizens United allow special interest groups to exercise the right of free speech and to do so with their pocket books we will be unable to exercise meaningful campaign finance reform.

In May I asked judges, lawyers, and the general public to read the plan and offer their views on strengthening judicial elections by visiting www.OhioCourts2013.org. I’m renewing that call today.

When you visit the website, you will find a white paper with a thorough analysis of the ideas I have outlined in this speech, a resources section that consolidates the research from past judicial selection conferences with books and journal articles, and a forum for you to share your ideas.

This proposal was not developed in a vacuum. It is based on a careful review of previous statewide efforts to examine judicial elections in the state.

I met with representatives of many of the interest groups before the announcement to share the plan and solicit their feedback. I met with the leadership of the Ohio Judicial Conference, the Ohio State Bar Association, League of Women Voters, and the leadership of the General Assembly and the Executive branch. I also presented the plan at the Ohio Constitutional Modernization Commission in August and most recently met with several Ohio labor organizations.

I encourage you to join the conversation by visiting the website and commenting on these ideas or bringing your own ideas to the table.

After ten months, here’s just one example of the reaction the plan has generated. As you would expect, no consensus has emerged.

As for the idea to hold all judicial elections in odd years, which stems from the need to address the voter drop off in judicial elections in even-numbered years, there were diverging thoughts.

Some Ohioans oppose the idea reasoning that the more voter involvement the better.

On the flip side, some Ohioans think that the more informed and involved voters – while fewer than those who show up at the polls in even years – would achieve better results based on principle and not popularity. And that in time the voter participation would increase with education and opportunity.

Consensus will be hard to obtain because these issues are not easy. Only through the participation of as many Ohioans as possible will we arrive at solutions that are appropriate, manageable, and worthwhile.

Thank you for allowing me the time to speak with you today. Thank you as well for you interest in this important topic.