Speeches

Chief Justice Thomas J. Moyer
State of the Judiciary
Ohio Judicial Conference
Sept. 7, 2000

It is a privilege and an honor to appear before you today, this, my 14th opportunity to continue the tradition of presenting a State of the Judiciary message to the Ohio Judicial Conference.

Consistent with our constitutional responsibilities for the administration of justice and reflecting our collective work, it is appropriate that in Ohio the chief justice comes to an annual gathering of judges to report on the state of the judiciary.

First, thank you Judge Bill Wolff for serving all of us as president of the Conference during two of its most productive and challenging years. Your leadership has been exemplary. Thank you also to the other officers, the members of the Executive Committee, and all of you who worked on the various committees of the Conference to build upon the strengths of our judicial system. I look forward to working with Judge Rose.

In the past I have reported impressive statistics and successful programs. In recent years most of us have resisted the temptation to continue sailing in familiar charted waters and, instead, set a course with few certain passages but countless opportunities. We have been engaged in planning for the future. But let us begin with a bit of wisdom from one who has gone before us. Thirty-two years ago this week, in a year of tumult in the country and the adoption of the Modern Courts Amendment in Ohio, the keynote speaker at this conference was Judge Warren Burger.

Judge Burger was a member of the United States Court of Appeals, but within a few months he would become Chief Justice of the United States. Judge Burger had this to say to the Ohio Judicial Conference in 1968:

As our society has become more complex, it has spawned an array of new problems, and that should not surprise us. History teaches us that progress always reveals new needs to be met and that is how the human race worked its way out of caves, swamps and the jungles and the forests.

When Judge Burger uttered those words, progress was the use of asbestos in home and commercial construction. Progress was landing a man on the moon, color television and disc brakes.

If we could compare the complexity of society today with the complexity of society when Judge Burger spoke here, it would be in logarithms.

Today, progress is measured in giga-bytes and bandwidth. Information-age businesses measure progress by the triple-digit increase in their stock market value, with little consideration for the company's profitability. Progress is the currency of the new economy, almost a goal unto itself.

But our business is different. The currency of the courts is the trust and confidence of our citizens, confidence that we will preside over fair processes that produce wise and just decisions. An institution founded on ancient principles, beholden to precedent, and responsible for the resolution of temporal disputes is not the first place one would look for futuristic thinking.

It is for that reason that I commend you for the theme of this year's conference-"The Judiciary: Interpreting the Vision." I assume and hope that your discussions this week will further the work of the Ohio Courts Futures Commission.

The Commission and its Advisory Committee produced 60 recommendations that include the development of technology standards, changes in jury service, personnel training, improved public access to, and education about, the courts, and evaluation and qualifications of judges. I thank Judges Spillane, Wolff, Payton, Rapp, Lanzinger, Tracey, Byers-Emmerling, Ray, Bessey, Krichbaum, McClelland and Justice Cook for your active participation as members.

Today I am pleased to announce the first formal step in implementing recommendations of the Futures Commission. Judge John Bessey, Chair of the Judicial Conference Technology Committee, has agreed to chair the Supreme Court Advisory Committee on Technology and the Courts. At its first meeting in a few days, the Committee will address the challenge of defining the technology needs of Ohio courts and developing standards that could make all court computer systems compatible with each other.

The Committee will not be charged to wire courts with all the digital adornments available in the marketplace. Courts should not be in the business of testing technology or adopting technology for its own sake. We should not be the bleeding edge. The Committee will be instructed to propose systems that are compatible with our mandate to provide a fair and efficient judicial system that meets the needs of citizens. It will also assist us in determining the funding necessary to bring all courts into the age of technology.

The primary challenge to the Advisory Technology Committee is exemplified in the fact that today the 527 courts in Ohio use 90 different computer systems, making communication among them virtually impossible. The number of different computer systems within Ohio's drug court program is another example. For the 37 drug courts, there are 22 different computer systems. In an attempt to evaluate the drug court program, the Supreme Court expended $144,000 just to design a system to collect the data.

Adopting technology standards is, by no means, an abridgement of local autonomy. Quite the opposite is true. Standards-goal-oriented standards-should promote independence by providing all courts with well-documented information that can enable each court to make informed decisions. Imagine ready access to more detailed studies indicating the best sentencing practices, the best drug treatment program and the most effective case management system.

The Supreme Court recently hired its first Web Editor, the first person at the Court whose sole function is to post current information on our Web page. But her long-term goal, redesigning the court's Web page, is a demonstration in the proper use of technology.

Again, a word of caution: do not become intoxicated with technology. Technology is an aid, not a solution. And, of course, technology will never be a substitute for training, experience, wisdom and common sense of the human mind.

For some, voice mail represents a technological hide and seek where a live person becomes available only after searching through a frustrating system of digital voices. A nationally known court consultant has suggested that courts should remove their automated switchboards and block voice mail. That is a drastic action, and perhaps an overreaction, but also a reminder that many of our citizens form their perception of the courts, not from judges and lawyers, but from personal contact with personnel in our offices. Certainly our commitment of resources and energy and encouragement should leave no doubt that we at the Supreme Court are committed to the aggressive, wise use of technology today and in the future. We are prepared to seek appropriate funding from the General Assembly to make the commitment a reality.

Another set of recommendations produced by the Futures Commission demonstrates respect for citizens. These proposals could have far-reaching implications for confidence in the judiciary because it is through jury service that most citizens interact with state courts.

I assume most of you know that the recommendations range from changing the means of selecting prospective jurors to changing the role of jurors in the courtroom. We know from counties in northwest Ohio that when prospective jurors receive precise information regarding jury duty, they respond. We know from experience in other states and from the experience of some of you, when allowed to take notes and pose questions to witnesses through a judge, jurors become more engaged and believe their decision is better informed.

The only persons in a courtroom not permitted to take notes are the jurors. That practice is contrary to the process used by most people in making important decisions.

A Los Angeles County Superior Court recently studied the use of jury questioning of witnesses and found that attorneys challenged not a single question posed by a juror. Another Los Angeles County judge reported that after a mini-opening statement by counsel prior to jury selection a potential juror asked to call her employer to request more time off work to serve on the jury.

We have begun the process of reform in Ohio with two major conferences on jury service sponsored by the Ohio State Bar Foundation. Jury commissioners have formed an association in order that they may be more effective.

I will soon be appointing a committee to facilitate jury reform in Ohio. One of the most perplexing problems identified in the Futures Commission report is how to ensure that all citizens, regardless of income, education or language skills have access to the state courts. Many citizens believe they have little choice other than self-representation.

In a new survey conducted by the Ohio State Legal Services Association, 84 percent of common pleas courts responding to the survey report an increase in pro se litigation over the past five years, with 87 percent of the self-representations occurring in domestic and family law cases. Despite increased funding, some of it from lawyer registration funds, of the Legal Services Foundation and some increase in voluntary pro bono efforts, the civil legal needs of many of our citizens are not being met.

We must not turn our back on pro se litigants. They consume more of our time and make more mistakes than represented litigants, but their cases are no less real. The rights to procedural and substantive due process are universal. They are not parsed on the basis of income.

More than 300 judges and court personnel have attended three seminars offered by the Judicial College during the past year on pro se issues. Those who attended are now able to better anticipate some of the challenges created by pro se litigants. One of those challenges is to provide them with enough information to access a court without crossing the line of providing legal advice. The seminars also included briefings on the common law and militia movements, and an introduction to Web sites and forms that would be helpful to pro se litigants.

All litigants, represented and not represented, will increasingly be offered the benefits of mediation as they seek resolution of their disputes by the courts. Two hundred thirty-one courts in 41 counties now provide staff mediators, and we are on target to reach the goal of providing mediation programs in all common pleas courts by 2005.

Administrative Director Steve Hollon is directing the implementation of the Futures Commission recommendations. He is working with the court's administrative staff and, of course, with each of the organizations, including the Judicial Conference, as their analyses of the recommendations are received.

The administrative staff of the Court will develop plans and budgeting for the various proposals. On the one-year anniversary of the release of the Futures Commission report, Law Day 2001, the Futures Commission will reconvene to be presented with a status report of the recommendations.

As Judge Burger noted, progress reveals new needs. Nowhere is that more evident than in the perception of the courts by racial minorities, particularly African-Americans. While more than a majority of Ohioans and Americans indicate their approval of the courts, minorities consistently say the judiciary is not only unfriendly to them, but at times displays disgust. During public hearings held by the Commission on Racial Fairness, an African-American told of how he pleaded guilty to a crime he did not commit because his lawyer told him the jury would not believe his version of the event.

Algenon Marbley, Judge of the U.S. District Court for the Southern District of Ohio, is leading the implementation of the recommendations produced by the Racial Fairness Commission. The Commission made 67 recommendations on topics ranging from the statistical study of criminal convictions, the disciplinary rules for lawyers and the employment practices of courts.

The Implementation Task Force is reviewing proposals intended to increase the hiring, retention and promotion of minorities. One proposal urges the expanded use of performance standards and job evaluations so that the work of all employees is measured by the same standards. The Judicial College will develop a diversity-training curriculum to be offered to all court employees.

That African-Americans are under-represented in the legal profession is confirmed by research. In recent years Ohio's law schools have, with some success, increased their efforts to recruit and retain minority students. But the challenge requires more resources. For that reason, the budget proposal I will submit to the General Assembly for the next biennium will include a request to fund the Conference for Legal Education Opportunity, better known as CLEO.

Our proposal will be modeled after a successful program initiated by the Indiana Supreme Court and a national program formerly funded by Congress. We have worked with law school deans and the Ohio State Bar Association to develop the proposal. It will provide minority and some other disadvantaged students with an intensive six-week program during the summer preceding their entry into law school, followed by assistance while in law school.

One of the most pressing problems confronting some of our courts is the estimated one-half million Ohioans who do not speak English. Whatever our views may be with respect to the responsibility of immigrants and others to learn the English language, we are required to accept, as they are, those who come to us. The inability to effectively communicate in the courtroom can and does result in imperfect outcomes.

The National Center for State Courts recently reported that the nation's Asian minority population increased 108 percent and the Hispanic population increased 53 percent between 1980 and 1990, a period during which the U.S. population increased only 10 percent. The Racial Fairness Implementation Task Force will be offering a strategy for addressing a challenge that will only increase in its urgency.

Courts in a democracy achieve the full measure of their purpose when they are perceived by all citizens to be places where rights and obligations are fairly and justly determined.

I would now like to discuss with you a matter that has drawn the attention of some of us and should be a concern to all of us. The Executive Committee of the Judicial Conference has approved a procedure that will enable the Conference to respond, institutionally, to what we would consider unfair or misinformed criticism of judges. It is an appropriate and timely venture for the Conference. I support it.

But, what should be said of the exceptions to the general premise that criticism is unfair or misdirected? We must admit that some criticism of the conduct of some judges is not misinformed and it is not unfair. And it hurts us all. I am not speaking of criticism directed at the exercise of judicial discretion. The exercise of discretion and the forming of judgments are primary responsibilities of judges. We do not encourage, but we certainly expect, to be criticized for them.

We should all be concerned with the increasing instances of judges whose temperament or personal conduct inside or outside the courthouse produce embarrassment for themselves, for their court and to some extent for the judiciary. Many of you have known or perhaps know a judge whose conduct causes you to believe that it is just a matter of time until the judge's conduct produces the filing of a disciplinary complaint or a news story. Some of you have counseled a colleague.

As judges, we have immense power over the lives of those who come before us. We are held to a higher standard of conduct than most other public officials. We determine whether the conduct of others complies with the rules of society. The performance of our duties requires a measure of patience, civility, understanding and wisdom that is required by virtually no other occupation. We enjoy neither the benefit of privacy nor excuses for frequent acts of intemperance. Whether it be in the courtroom, in a conference with attorneys, or discussions with the colleagues on our court, the inappropriate conduct of one ultimately affects the perception of us all.

The essence of our work is to assist others to resolve their disputes. Should we not then attempt to help a colleague who needs help?

In my informal discussions with some of you I have found that you, too, believe the trend is in the wrong direction. We have discussed alternative courses of action. It is not my purpose here to offer examples. I am sure each of you has your own. We share a responsibility to develop an institutional response to the problem. The very nature of our work is the orderly resolution of the problems of others. Should we not then, at a minimum, attempt to assist a colleague to see and remedy theirs?

The time has come to stop commiserating among ourselves about the aberrant behavior of a few. The time has come for us to say we have had enough, enough of the questions from citizens asking us to explain the conduct of a judge in the news. Enough of trying to convince others that all judges are not like the one in the news story. Enough of the few among us who consider the title of "judge" a license for intemperate and even unethical conduct rather than the designation of honor. We need to say by our collective action that we have the will to keep our house in order.

I will not be appointing another committee. You are the committee. I have some ideas but I will hold mine until I hear yours. Give me your thoughts, give me your assessment. Together, we will address the problem.

The state of the Ohio judiciary in the year 2000 is measured not so much by case statistics and successful programs as it is by our will and our ability to perpetually adjust the vision of our future.

As you go about that task today and tomorrow, remember the words of Chief Justice Burger that: "The basic question before us is not whether legal institutions should change, but what those changes ought to be and how we ought to go about making them. The duty of disciples of the law is to preside over orderly change."

I am grateful for the privilege of being a disciple of the law with each of you.

Thank you.