Justice Speeches

Thank you Judge for that introduction and for the invitation to speak at the bar’s annual convention. Thank you as well for your leadership of the OSBA.

Congratulations are in order for the bar’s president-elect, Jonathan Hollingsworth, whom I’m looking forward to working with over the next year.

Congratulations as well to Barbara Howard and Ritchey Hollenbaugh for receiving the state bar’s highest honor.

I’m grateful that several of my colleagues on the court could join us today, including Justice Terrence O’Donnell, Justice Sharon Kennedy, and Justice Judith French. Thank you for being here.

And to all the members of the bar from all corners of the state, thank you for that reception.

This month marks 45 years since Ohio last enacted comprehensive reforms in the judicial system with the passage of the 1968 Modern Courts Amendment.

This anniversary also happens to fall in the year when Ohio is already engaged in a process of reevaluating the foundations of our system of government, as the Ohio Constitutional Modernization Commission meets to systematically examine our state’s governing document and discuss potential improvements.

From the perspective of the Ohio judiciary, I believe 2013 is an opportunity for us to come together to address an issue of critical importance that was set aside in that historic reform package 45 years ago but has continued to generate discussion and controversy ever since.

It is time for Ohio to address the issue of judicial selection.

In a constitutional democracy the judicial branch is a bedrock institution that resolves disputes, ensures order by adjudicating criminal offenses, and protects the rights of minorities and individuals.

Judges are the officials in whom we trust these awesome responsibilities. Thus, there are few matters more important in our democracy than ensuring that we have a system in place that results in the best possible men and women serving on the bench.

What is the best way to do this in Ohio? Can we improve the system that we have?

Make no mistake, we enjoy one of the best systems of justice anywhere in the world. Extraordinarily talented and hard working people make up the Ohio judiciary, and the work they do every day is remarkable.

But there are three reasons that I believe we can do even better.

Polls show that the public views judges as susceptible to political influence.

Voter participation in judicial elections on average is 25 percent less than participation in races for the executive and legislative branches.

There is evidence that we can do more to educate and inform the electorate.

Judicial elections have been a matter of controversy in Ohio since they were first established in the Constitution of 1851. However, there is widespread agreement today that we should elect our judges.

Over the last 75 years, there have been multiple attempts to do away with judicial elections entirely in Ohio, and voters time and again have reaffirmed by large margins that they want judges to be accountable in competitive elections.

Most recently, a poll in December 2012 found that more than 80 percent of Ohioans oppose doing away with competitive elections.

So, I believe it is time to move on from judicial selection and talk about what we can do to strengthen our existing system of judicial elections.

That’s why today I’m announcing “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 public consideration. Those questions include:

Should Judicial Contests Always Be Placed at the End of the Ballot?

Should All Judicial Elections Be Held During Odd Years?

Should Ohio Centralize & Expand Its Civic Education Programming and Institute a Judicial Voter Guide?

Should Ohio Remain the Only State in the Union that Holds Partisan Primaries Followed by Non-Partisan General Elections for Judges?

Should Ohio Join the Other States that Have a Formal, Non-Partisan System for Recommending Nominees to the Governor to Fill Judicial Vacancies?

Should Appointments to the Ohio Supreme Court Require the Advice and Consent of the Ohio Senate?

Should Ohio Increase the Basic Qualifications for Serving as a Judge?

Should Ohio Increase the Length of Judges’ Terms?

Let me take each question individually and explain a little more.

Should Judicial Contests Always Be Placed at the End of the Ballot? Ohio election law places judicial contests at the bottom of the ballot. Multiple studies demonstrate that ballot order matters.

Candidates listed first get more votes.

Contests and issues listed first get more 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? Because judicial contests come at the end of the ballot, one quarter of voters consistently come to the polls and then do not participate in these contests.

Would changing the ballot order increase voter participation in selecting the men and women who serve in our judicial branch?

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 for municipal courts?

During presidential and mid-term elections, races for the judiciary get lost in the shuffle.

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?

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 elections for the other two branches.

In 2003, the late Chief Justice Thomas J. Moyer hosted a forum regarding judicial impartiality.

The Next Steps conference brought together a wide range of stakeholders to discuss ways to increase trust and confidence in the judiciary.

The resulting report recommended bolstering voter education, and for a brief time the Ohio Secretary of State’s Office experimented with a statewide judicial voter guide, but this effort was abandoned.

In the past, various groups have sponsored televised judicial candidate debates for the Ohio Supreme Court, but these have not been held in at least two election cycles.

Meanwhile, while there are multiple successful programs for general civic education in the law, it has been suggested that these efforts would benefit from combining their resources and working in concert with one another.

Finally, 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 the more transparent the courts are, the more citizens will understand the system.

Should Ohio centralize and expand civic education in the law? Should there be a statewide, Web-based repository for judicial candidate information and a formal body for conducting judicial debates?

Should the use of cameras in the courtroom in Ohio be expanded?

Should Ohio Remain the Only State in the Union that Holds Partisan Primaries Followed by Non-Partisan General Elections for Judges? Twenty two states elect their judges in competitive elections. Seven of these hold overtly partisan elections where the candidate’s party affiliation appears on the ballot in both the primary and the general election.

Fourteen of these states have explicitly non-partisan elections where the party affiliation does not ever appear on the ballot. Ohio is the only state in the country that holds overtly partisan primaries with ostensibly nonpartisan general elections where the party affiliation does not appear on the ballot.

Should party affiliation have any bearing on races for an office that requires absolute impartiality? Is it 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. They advocate taking the opposite approach and adding partisan labels to judges races in the general election.

I respectfully disagree. Party affiliation has no place in judicial elections. Period.

The ABA’s 2003 Commission on the 21st Century Judiciary provides an excellent argument against taking the partisan route.

[P]artisan elections make party affiliation the single most salient feature of a judge’s candidacy by including it as the only information about the candidates on the ballot itself….

The net effect is to further blur, if not obliterate, the distinction between judges and other elected officials in the public’s mind by conveying the impression that the decision making of judges, like that of legislators and governors, is driven by allegiance to party, rather than to law.

Should Ohio Join the Other States that Have a Formal, Non-Partisan System for Recommending Nominees to the Governor to Fill Judicial Vacancies? More than half of all judges in Ohio are initially appointed the bench by the gov. to fill a vacancy rather than through an election.

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 some form of a nominating commission with varying degrees of success in the past.
Cuyahoga County has had a very successful local program fulfilling this function.

The American Bar Association has advocated this approach. Should Ohio adopt in law judicial nominating commissions for gubernatorial appointments?

The larger issue at work here is direct accountability to voters especially when you consider the significant number of judges that run unopposed already in elections.

In fact, in the November 2012 general election, twice as many judges did not have an opponent as those that did.

The other voter accountability consideration is the fact that a significant proportion of trials in domestic relations and juvenile courts are handled by magistrates in Ohio (80 percent magistrates versus 20 percent judges), who do not stand for election.

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, the system of checks and balances among the three branches of government includes a requirement that judicial appointments by the chief executive (the president or the governor) 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 court system? Should the Ohio Senate have the authority to approve appointments to the Ohio Supreme Court?

Should Ohio Increase the Basic Qualifications for Serving as a Judge?
Another one of the recommendations of the Next Steps forum attendees was to increase the number of years of practice necessary to run for or be appointed to a judgeship. Currently, an attorney need only have engaged in the practice of law in Ohio for six years prior to assuming the bench.

Across the United States there are varying requirements for legal credentials prior to becoming a judge.

Some states, for the trial courts, require no specific number of years in practice, but the majority require at least five years of practice and up to 10 years.

For appellate courts, some states still do not require a specific number of years in practice but many require at least eight years and some at least 10 years in the active practice of law.

Three legislative proposals to enact portions of the Next Steps recommendations would have implemented longer years of practice requirements.

The bills would have maintained the six-year requirement for municipal and county court judges and raised the requirement for common pleas judges (8 years required), court of appeals judges (10 years required), and supreme court justices (12 years required).
Should Ohio increase the number of years required to serve on the bench?

Should Ohio Increase the Length of Judges’ Terms?
Another suggested reform of The Next Steps forum was an increase in the length of judicial terms in Ohio. The Judicial Qualifications and Term Lengths Work Group stated that increased term lengths would promote “judicial independence while ensuring continued accountability to the public.”

Currently in Ohio all judges are elected to six year terms. The forum participants noted that the terms of county and municipal judges must remain six years without an amendment to the Ohio Constitution.

Under the forum participant’s recommendations county and part-time municipal court judges would serve eight years, full-time municipal court judges and common pleas judges would serve 10 years, and intermediate appellate court judges and Supreme Court justices would serve 12-year terms.

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?

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

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

Judges, lawyers, and the general public are encouraged to read the plan and offer their views on strengthening judicial elections by visiting www.OhioCourts2013.org.

At 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 either. It is based on a careful review of previous statewide efforts to examine judicial elections in the state, including the Next Steps conference and the 2009 Forum on Judicial Selection and included the Ohio State Bar Association, the League of Women Voters Ohio Chapter, legislative leaders, academic experts, and groups representing business and labor.

I met with representatives of many of these groups before today’s announcement to share the plan and solicit their feedback.

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

It’s been 45 years since we last enacted comprehensive reforms in the Ohio judicial system. The one piece of unfinished business in the 1968 Modern Courts Amendment was reforming of our judicial elections.

Thoughtful people have discussed the topic ever since, and I believe that now is the time to come together as a state and to arrive at a package of improvements that we can enact into law.

Thank you.

Now I’m pleased to present the sixth John C. and Ginny Elam Pro Bono Award. As we single out one outstanding attorney today, I should note that attorneys performed more than 100,000 hours of volunteer legal services to Ohioans in need in 2012, according to information from attorneys taking part in voluntary pro bono reporting initiative.

Each year the state bar recognizes an individual attorney’s selfless donation of time and skills toward the common good and helping more Ohioans access justice in hopes that it will encourage pro bono and volunteer activities.

Nominated by Ann McGovern Porath of the Legal Aid Society of Cleveland, this Cleveland attorney is being recognized for her ongoing work with Legal Aid’s brief advice and referral clinics.

As the leading volunteer attorney staffing multiple clinics each year, she provides follow-up pro bono representation to individual clients from these clinics and mentors new volunteer attorneys.

Please join me in congratulating Deborah Coleman as this year’s recipient. Deborah, please come forward to accept this plaque and a grant of $5,000 for the charitable organization of your choosing. Congratulations.